Judge James C. Chalfant, Case Number: 21STCP02764, Date: 2023-08-31 Tentative Ruling

Respondents City of Los Angeles (“City”), Los Angeles City Council (“City Council”), Los Angeles Planning Dept. (“Planning”), and City Board of Police Commissioners (“Board,” collectively “City”) demur to the First Amended Petition (“FAP”) filed by Petitioner Hollywood Entertainment Lounge, Inc. (“Hollywood”).

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

Hollywood filed the Petition against Respondents on August 24, 2021. The operative pleading is the FAP filed on March 1, 2022, alleging (1) abuse of discretion in disallowing Joseph’s Café (“Café”) from operating from 7:00 a.m. daily in violation of Los Angeles Municipal Code (“LAMC”) sections 12.24(M) and 12.24(W)(1), (2) breach of the City Council’s mandatory duty to hear appeals of determinations for proposed site development plans under LAMC section 12.24(M), (3) breach of Planning’s mandatory duty to initiate conditional use revocation proceedings under LAMC sections 12.24(Z) and 12.27.1, and (4) breach of the Board’s ministerial duty to initiate revocation or related proceedings against Hollywood’s dance hall permit under LAMC section 102.02, et. seq. The FAP alleges in pertinent part as follows.

On September 1, 2016, Hollywood became the sole operator of the Café and operated it consistent with the use conditions in place for on-site alcohol consumption (“CUB Conditions”) and dancing (“CUX Conditions”). FAP at ¶8. Pursuant to a Zoning Administrator (“ZA”) decision of February 13, 2013, the conditions in place allowed for general operations from 7:00 a.m. to 2:00 a.m., dancing from 8:00 p.m. to 2:00 a.m., and live entertainment from 7:00 p.m. to 2:00 a.m. daily. FAP at ¶8, n. 3.

Condition 51 of the ZA decision required Hollywood, as the new business owner, to file for a Plan Approval to evaluate the applicability of existing conditions and review of potential changes in the “mode and character” of the new operation. FAP at ¶8, n. 3. On March 20, 2017, pursuant to LAMC section 12.24(M) and the CUB and CUX Conditions, Hollywood filed a Plan Approval application with Planning. FAP at ¶9. After a hearing, on January 12, 2018, the ZA issued a written decision limiting the Café’s hours of operation to 9:00 a.m. through 12:00 a.m., operation of the outdoor patio to 10:00 a.m. through 11:00 p.m., and dancing with live entertainment to 8:00 p.m. through 11:30 p.m. FAP at ¶12.

40% of the Café’s revenue is from the morning hours. FAP at ¶13. If the Café’s operations are truly detrimental to the community, either Planning or the Los Angeles Police Department (“LAPD”) should have initiated independent revocation proceedings. FAP at ¶13, n. 5. During those proceedings, LAMC section 102.02 et seq. would have guaranteed Hollywood procedural and substantive due process rights. FAP at ¶13, n. 5.

Hollywood appealed the 2018 ZA decision to the Central Area Planning Commission (“CPC”). FAP at ¶13. At a hearing on April 23, 2018, the CPC restored operation of the Café as a whole between 7:00 a.m. and 10:00 a.m. FAP at ¶14. It otherwise affirmed the restrictions on outdoor hours and dancing hours. FAP at ¶14. The CPC issued a Letter of Determination (“LOD”) to that effect on May 9, 2018. FAP at ¶14.

On May 15, 2018, Councilman O’Farrell introduced a motion to reverse the LOD and reinstate the more restrictive hours of the ZA decision. FAP at ¶15. Without notice to Hollywood, the City Council passed the motion on May 18, 2018. Hollywood later filed a petition for writ of mandate to compel the City Council to reverse this. FAP at ¶15, n. 7. After the court granted a motion to quash service, Hollywood dismissed the case without prejudice. FAP at ¶15, n. 7.

On June 29, 2018, a Planning deputy told Hollywood that the City and LAPD would not enforce the more restrictive conditions. FAP at ¶16. Hollywood worked closely and cooperated with LAPD throughout 2018. FAP at ¶17, Exs. 2-3.

On June 10, 2019, Hollywood filed a second Plan Approval application with Planning to restore the Café’s original morning and evening hours. FAP at ¶18. During a hearing before the ZA on October 22, 2019, Hollywood demonstrated its ongoing cooperation with LAPD. FAP at ¶18, n. 8. No facts were offered to indicate any serious nuisance activities during the early morning operational hours. FAP at ¶18, n. 8. Despite this, on August 25, 2020, the ZA issued a written decision that limited operating hours to 10:00 a.m. through 11:00 p.m. and revoked the right to dancing at all. FAP at ¶18.

Hollywood appealed the decision to the CPC. FAP at ¶19. On May 26, 2021, after an appeal hearing, the CPC’s LOD restored dancing and moved the end of permissible operating hours to 11:30 p.m. FAP at ¶19. However, the CPC declined to return the morning hours of operation to either 6:00 a.m. or 7:00 a.m. FAP at ¶19.

The City and CPC abused their discretion because there was no substantial evidence to support a decision to restrict the Café’s morning hours. FAP at ¶21. LAMC section 12.24(M)(2) allows an applicant that submits development plans to appeal an adverse CPC decision to the City Council. FAP at ¶25. Hollywood was denied this right. FAP at ¶26.

Throughout the adverse decisions, Hollywood has retained its unconditional dance hall permit. FAP at ¶33. LAMC section 103.28 et. seq. imposes a ministerial duty on the Board to investigate that permit whenever it becomes apparent to the Board or LAPD that the Café’s operation is contrary to the requirements for a dance hall permit. FAP at ¶33. This includes the grounds set out in LAMC section 103.31. FAP at ¶33. If the accusations against the Café are as serious as in investigative reports that LAPD submitted to Planning, LAMC section 102.02 et seq. required the Board to initiate an order to show cause hearing why that permit should not be revoked. FAP at ¶33. The Board instead embarked on a harassment campaign at the behest of the City Council. FAP at ¶33, n. 9. Hollywood should have the opportunity to meaningfully confront the false and exaggerated accusations against it, consistent with due process. FAP at ¶33, n. 9.

This action challenges the 2021 LOD (FAP at ¶1(a)), the City Council’s failure to allow Hollywood to appeal the August 2020 Decision (FAP at ¶1(b)), Planning’s failure to decide in the first instance whether to commence proceedings against the City for nuisance abatement and revocation or suspension of conditional use rights for alcohol and dancing (FAP at ¶¶ 1(c), n.1), and the Board’s failure to decide in the first instance whether to revoke, suspend, or condition Hollywood’s dance hall permit based on information LAPD had that reflects poorly on Hollywood’s qualifications (FAP at ¶¶ 1(d), 5, n.1). Hollywood has exhausted all formal administrative remedies. FAP at ¶7.

An administrative writ of mandate should direct the City to vacate and set aside actions that prohibit operation of the Café from 7:00 to 10:00 a.m. or until 2:00 a.m. daily. FAP Prayer for Relief, ¶1. A traditional writ of mandamus should direct the City Council to hear Hollywood’s appeal of the 2021 LOD. FAP Prayer for Relief, ¶2. It should also direct Planning to initiate an order to show cause hearing under LAMC section 12.24(Z) or 12.27.1 to determine the extent to which it should revoke or modify Hollywood’s CUB or CUX Conditions. FAP Prayer for Relief, ¶3. It should also direct the Board to initiate an order to show cause hearing under LAMC section 102.03 to determine if it should revoke, modify, or suspend Hollywood’s dance hall permit. FAP Prayer for Relief, ¶4.

Upon Hollywood’s success, the court should also award costs. FAP Prayer for Relief, ¶5.

On March 2, 2022, Hollywood filed notice of substitution of Noel Weiss, Esq. as its counsel.

Demurrers are permitted in administrative mandate proceedings. CCP §§1108, 1109. A demurrer tests the legal sufficiency of the pleading alone and will be sustained where the pleading is defective on its face.

Where pleadings are defective, a party may raise the defect by way of a demurrer or motion to strike or by motion for judgment on the pleadings. CCP §430.30(a); Coyne v. Krempels, (1950) 36 Cal.2d 257. The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer to the pleading. CCP §430.10. A demurrer is timely filed within the 30-day period after service of the complaint. CCP §430.40; Skrbina v. Fleming Companies, (1996) 45 Cal.App.4th 1353, 1364.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain; (g) In an action founded on a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP sections 411.35 or 411.36. CCP §430.10.

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318. The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94), but it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief. Garcetti v. Superior Court, (“Garcetti”) (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339. The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court. Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47.

The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403. This rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates, (“Vance”) (1995) 36 Cal.App.4th 698, 709.

For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. CCP §430.31(a). As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies. CCP §430.31(a)(1). The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency. Id. The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met. CCP §430.31(a)(3).

“[A] demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” State ex rel. Metz v. CCC Information Services, Inc., (2007) 149 Cal.App.4th 402, 413.

If a demurrer is sustained, the court may grant leave to amend the pleading upon any terms as may be just and shall fix the time within which the amendment or amended pleading shall be filed. CCP §472a(c). However, in response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. CCP §430.41(e)(1).

Planning’s chief administrative officer is the Director of Planning (“Director”). RJN Ex. 1 (Charter §553(a)). The Director and the Director’s designee shall have any powers and duties provided by ordinance. Charter §553(b)(4).

The Office of Zoning Administration (“ZA Office”) is a quasi-judicial agency. Charter §561. The Director shall appoint ZAs to perform the Zoning Office’s duties. Id. Subject to rules and regulations prescribed by ordinance, the ZA Office shall investigate and determine all applications for variances from any of the regulations and requirements of zoning ordinances. Id. It shall have other powers and duties with respect to zoning and land use as prescribed by ordinance. Id.

The City Charter compels the City Council to create via ordinance at least five APCs. Charter §552. Each APC shall have and exercise the power to hear and determine appeals where an error or abuse of discretion in any ZA order, requirement, decision, interpretation, or other determination is alleged. Charter §552(a).

When a ZA’s decision for a conditional use permit (“CUP”) or similar quasi-judicial approvals aggrieves someone, the aggrieved person may appeal it to the APC. Charter §563(b)(2). Except for an APC decision on an appeal of a ZA’s decision, an APC’s decision may be appealed to the City Council or CPC as provided by ordinance. Id. No process for approval of CUPs or similar quasi-judicial approvals may include more than one level of appeal from the decision of the decision-making official or body. Id.

The use of “shall” in the LAMC indicates mandatory action, whereas “may” is permissive. RJN Ex. 2 (LAMC §11.01(a)).

Except when Charter section 56 or LAMC section 12.36 provide otherwise, the ZA, APC, or CPC shall make the initial decision on CUPs and similar quasi-judicial approvals. RJN Ex. 3 (LAMC §12.24(C)). The decisionmaker shall not grant the permit or other approval without finding that (1) the project will enhance the built environment in the surrounding neighborhood, or will perform a function or provide a service that is essential or beneficial to the community, city, or region; (2) its location, size, height, operations and other significant features will be compatible with and will not adversely affect or further degrade adjacent properties, the surrounding neighborhood, or the public health, welfare, and safety; and (3) it substantially conforms with the purpose, intent and provisions of the General Plan, applicable community plan, and applicable specific plan. LAMC §12.24(E).

The ZA as initial decisionmaker, or APC as appellate body, may permit the sale or dispensing of alcoholic beverages. LAMC §12.24(W)(1). Aside from the requirements of LAMC section 12.24(E), it must find that the proposed use (1) will not adversely affect the welfare of the pertinent community, (2) will not lead to an undue concentration in the area of premises that can sell and dispense alcohol, and (3) will not detrimentally affect nearby residentially zoned communities in the area involved. LAMC §12.24(W)(1)(a).

For any lot with a deemed-approved conditional use pursuant to LAMC section 12.24, the owner may erect new structures or expand existing ones provided that it first submits plans for them to the ZA, APC, or CPC depending on who has jurisdiction. LAMC §12.24(M)(1). The decisionmaker may deny the plans if it finds that the use does not conform to the purpose or intent of the findings required for a conditional use. Id. The decisionmaker may also specify conditions for plan approval. Id.

An applicant submitting development plans or any other person aggrieved by such a ZA decision may appeal the decision to the APC pursuant to LAMC sections 19.00 and 12.24. LAMC §12.24(M)(2). An applicant or other person aggrieved by the decision of the APC or CPC relative to approval/disapproval of a development plan may appeal to the City Council pursuant to LAMC sections 19.00 and 12.24. LAMC §13.24(M)(2).

If an applicant failed to comply with the conditions of any conditional use or other quasi-judicial approval under LAMC section 12.24, the Director or the appropriate APC or CPC (if it granted approval), may give notice to the record owner or lessee of the affected property to appear at a time and place of the decisionmaker’s choosing to show cause why it should not rescind or repeal the approval. LAMC §12.24(Z). After the hearing, the decisionmaker may choose to revoke, temporarily suspend, or impose further restrictions on the conditional use or other similar quasi-judicial approval. LAMC §12.24(Z)(1).

Notwithstanding any other LAMC provision, the Director may require the modification, discontinuance or revocation of any land use or discretionary zoning approval if the Director finds that it meets one of six criteria as operated or maintained. RJN Ex. 4 (LAMC §12.27.1(B)).

No person may operate, engage in, conduct, or carry on any business without first obtaining a permit from the Board. RJN Ex. 5 (LAMC §103.02). The business owner shall file an application for a permit with the Office of Finance on the provided forms and all requested information and documents. LAMC §103.02.1(a). The applicant shall sign the application under penalty of perjury. Id.

The Board shall investigate any permit application. LAMC §103.28. It may examine any applicant or officer, partner, or member thereof to determine the real party in interest in the business for which the applicant seeks a permit. Id. The Board shall deny an application if it does not satisfy the requirements of LAMC section 103.00 et. seq. LAMC §103.31. It also may deny a permit based on any of the other grounds listed in LAMC section 103.31. Id.

On its own motion or on another person’s verified complaint, the Board may investigate any permittee’s actions. LAMC §103.34. It may then temporarily suspend a permit for less than a year, revoke it, or impose conditions for retention thereof if the permittee has committed any act or acts that constitute grounds for suspension, revocation, or disciplinary action. Id.

A hearing to determine whether a permit should be revoked, suspended, limited, or conditioned shall be initiated by filing an accusation. LAMC §102.03. This accusation shall be a written statement of charges that states in ordinary and concise language the acts or omissions with which the respondent is charged, such that the respondent will be able to prepare his defense. Id.

Any action or proceeding to attack, review, set aside, void, or annul any decision on the matters listed in Government Code (“Govt. Code”) sections 65901 and 65903, or to determine the reasonableness or validity of any condition attached to a variance, conditional use permit, or any other permit, must be commenced with service made on the legislative body within 90 days of that decision. Govt. Code §65009(c)(1)(E). This includes hearings by the ZA to decide applications for CUPs when the zoning ordinance provides therefor and establishes criteria for determining those matters. Govt. Code §65901(a).

The CPC issued the LOD on May 26, 2021. RJN Ex. 6. The LOD advised Hollywood that the decision therein was not further appealable and would become final upon mailing of the LOD. Id. Hollywood personally served the Petition on September 1, 2021. RJN Ex. 7. 98 days elapsed between the 2021 LOD and service of the Petition. RJN Exs. 6-7. Hollywood concedes that the court should sustain the demurrer to the first two causes of action without leave to amend because the Petition was untimely served. Opp. at 2. The demurrer is sustained as to the first and second causes of action.

The City asserts that the third and fourth causes of action also are untimely because they also challenge the LOD. The City argues that Govt. Code section 65009(c) applies to all challenges to permits without regard to the legal theory or remedy. See Freeman v. City of Beverly Hills, (1994) 27 Cal.App.4^th 892, 897 (damages and declaratory relief claims from ordinance passage were time-barred). The applicable statute of limitations runs depends on the specific governmental act that the petitioner challenges. County of Sonoma v. Sup.Ct., (2010) 190 Cal.App.4th 1312, 1324. The allegations of the pleadings and to the relief requested reveal the true nature of the claims at issue. Sonoma, supra, 190 Cal.App.4th at 1324. Dem. at 20.

The City argues that, like the first and second causes of action, the third and fourth challenge the operational conditions imposed by the 2021 LOD and seek different conditions. Dem. at 19-20. They seek to determine the extent to which the same operational conditions should be revoked or modified. Reply at 3.

The City mischaracterizes the third and fourth causes. A “cause of action” is comprised of a “primary right” of the plaintiff, a corresponding “primary duty” of the defendant, and a wrongful act by the defendant constituting a breach of that duty. Crowley v. Katleman, (1994) 8 Cal.4th 666, 681. California law identifies a single cause of action as the violation of a single primary right. Castaic, supra, 180 Cal. App. at 227. Accordingly, two proceedings are the same if they are based on the same “primary right.” Federation, supra, 126 Cal.App.4th at 1202. The plaintiff’s primary right is the right to be free from a particular injury suffered, regardless of the legal theory on which liability for the injury is based. Id. at 1202. The scope of the primary right therefore depends on how the injury is defined. Id. An injury is defined in part by reference to the set of facts, or transaction, from which the injury arose. Id. at 1203.

Both the third and fourth causes seek to compel an investigation and institution of a revocation proceeding. The third cause seeks to compel Planning to initiate an order to show cause hearing under LAMC section 12.24(Z) or 12.27.1 to determine the extent to which it should revoke or modify Hollywood’s CUB or CUX Conditions. FAP Prayer for Relief, ¶3. The fourth cause seeks to direct the Board to initiate an order to show cause hearing under LAMC section 102.03 to determine if it should revoke, modify, or suspend Hollywood’s dance hall permit. FAP Prayer for Relief, ¶4.

Thus, the primary right is the right to a hearing on revocation/modification or nuisance abatement under LAMC sections 12.24, 12.27, and 102.03 and the primary duty is the City’s obligation to investigate and provide such a hearing. Both causes assume that the CPC’s 2021 LOD restrictions are proper but that the underlying facts compel Planning and the Board, respectively, to initiate a potentially more punitive action. All of this is designed to provide Hollywood with an evidentiary hearing at which it may present and cross-examine witnesses. These rights/duties are not the same causes of action as the challenge to the provisions of the LOD.

The City argues that the third and fourth causes of action fail to state a cause of action because Planning and the Board have no mandatory duty to initiate revocation or nuisance abatement proceedings. Dem. at 23-24.

A traditional writ of mandate is the method of compelling the performance of a legal, ministerial duty required by statute. See Rodriguez v. Solis, (1991) 1 Cal.App.4th 495, 501-02. Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance.” Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84 (internal citations omitted).

A ministerial duty is one a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists. Lockyer v. City and Cnty. of San Francisco, (“Lockyer”) (2004), 33 Cal. 4th 1055, 1082; Ellena v. Department of Insurance, (2014) 230 Cal.App.4th 198, 205. It is “essentially automatic based on whether certain fixed standards and objective measures have been met.” Sustainability of Parks, Recycling & Wildlife Legal Defense Fund v. County of Solano Dept. of Resource Mgmt., (“Sustainability of Parks”) (2008) 167 Cal.App.4th 1350, 1359. In contrast, a discretionary act involves the exercise of judgment by a public officer. County of Los Angeles v. City of Los Angeles, (2013) 214 Cal.App.4th 643, 653-54. Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation. AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

The use of “shall” in the LAMC indicates mandatory action, whereas “may” is permissive. LAMC §11.01(a). LAMC sections 12.24(Z) and 12.27.1 state that the Director and APC “may” initiate proceedings to revoke or modify a conditional use or discretionary zoning approval. Dem. at 23; RJN Exs. 3-4. LAMC section 103.34 provides that the Board “may” investigate the actions of any permittee and revoke or impose conditions upon any permit the Board has issued. RJN Ex. 5.

Hollywood concedes that the word “may” means that the duties at issue in both the third and fourth causes of action are discretionary rather than ministerial. Opp. at 1. Hollywood asserts that the abuse of discretion stems from Planning’s and the Board’s failure to exercise the discretion that each agency had “in the first instance.” Opp. at 1; FAP at ¶¶ 1c, 1d. Hollywood cites Aids Healthcare Foundation v. Los Angeles County Department of Public Health (2011) 197 Cal. App. 4th 693, 704, which states that, to compel a government agency to take some action, a petitioner must plead and prove that the agency failed to act and that its failure was arbitrary, beyond the bounds of reason, or in derogation of the applicable legal standards. Opp. at 1-2.

Hollywood argues that the events alleged in the FAP were part of a harassment campaign by District 13 Council Office to put the Café out of business by denial of procedural and substantive due process. Opp. at 2. The ZA’s October 22, 2019 hearing provided no opportunity for cross-examination or for Hollywood to otherwise confront the accusations. Opp. at 2, 5; FAP at ¶33, n. 9.[3] Although the CPC’s LOD reversed some restrictions of the ZA decision, the morning hours were not restored. Opp. at 2, 5; FAP at ¶19. Hollywood would have enjoyed procedural due process protections if either a Planning nuisance abatement hearing under LAMC section 12.24(Z) or a Board permit revocation hearing under LAMC section 102.03 had occurred. Opp. at 4-5; RJN Exs. 3, 5. The court should therefore find that the failure to act was an abuse of discretion, if for no other reason than to implement fair and reasonable checks and balances on the bureaucracy. Opp. at 3.

Hollywood acknowledges that Los Angeles Waterkeeper v. State Resources Control Board, (“Waterkeeper”) (2023) 92 Cal.App.5th 230, 278-79, 282, held that the State Water Board did not have a mandatory duty to investigate a particularly egregious waste of water by local publicly owned water treatment plants. Hollywood notes that the court stated that neglect of a mandatory duty in a particular case could evidence that any agency is broadly failing to take action to meet its investigatory duties, but that was not alleged or found. See id. Hollywood concludes that Waterkeeper supports its view that Planning and the Board can be compelled to act in the first instance. Opp. at 4.

Hollywood’s position is untenable. An agency decision is an abuse of discretion only if it is “arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.” Kahn v. Los Angeles City Employees’ Retirement System, (2010) 187 Cal.App.4th 98, 106. Mandamus will not lie to compel the exercise of a public agency’s discretion in a particular manner. American Federation of State, County and Municipal Employees v. Metropolitan Water District of Southern California, (2005) 126 Cal.App.4th 247, 261. It is available to compel an agency to exercise discretion where it has not done so (Los Angeles County Employees Assn. v. County of Los Angeles, (1973) 33 Cal.App.3d 1, 8), and to correct an abuse of discretion actually exercised. Manjares v. Newton, (1966) 64 Cal.2d 365, 370-71. In making this determination, the court may not substitute its judgment for that of the agency, whose decision must be upheld if reasonable minds may disagree as to its wisdom. Id. at 371. A writ will lie where the agency’s discretion can be exercised only in one way. Hurtado v. Superior Court, (1974) 11 Cal.3d 574, 579.

As the City notes, neither Planning nor the Board has a duty to investigate and initiate a revocation/nuisance abatement proceeding. Reply at 4. If an applicant fails to comply with the conditions of any conditional use, the Director or the appropriate APC or CPC may give notice to show cause why it should not rescind or repeal the approval. LAMC §12.24(Z). Similarly, the Board may investigate any permittee’s actions (LAMC §103.34) and then file an accusation for a hearing whether the permit should be revoked, suspended, limited, or conditioned. LAMC §102.03. The language of these provisions does not suggest that a mandatory duty to investigate or initiate proceedings in any case.

The lack of a mandatory duty to act makes this case less viable than Waterkeeper, where the State Water Board had a clear mandatory statutory duty to recycle water. Moreover, the City is correct that Waterkeeper only states that mandamus may lie where an agency is generally failing to perform an investigative duty, not when the agency fails to do so in a particular case. 92 Cal.App.5th at 278-79, 282. The FAP does not attempt to link failure to act in Hollywood’s case to a general failure to investigate by Planning or the Board. Reply at 5; FAP at ¶¶ 1(c), (d), 5, n.1.

Finally, the City correctly notes that it has exercised its discretion in Hollywood’s case by imposing operation conditions through the LAMC section 12.24.M Plan Approval process. Hollywood cannot compel Planning or the Board to pursue an alternative process to regulate the same business operation. If Hollywood was denied due process during the hearings before the CPC and the ZA, the appropriate action was a timely petition for an administrative writ of mandate at which those issues could be addressed. Reply at 4.[4]

The third and fourth causes of action fail to state a mandamus claim based on a mandatory ministerial duty.

The City’s demurrer to the FAP is sustained without leave to amend. An OSC re: dismissal is set for September 21, 2023 at 9:30 a.m.

[1] Hollywood failed to lodge a courtesy copy of its opposition in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Counsel is admonished to provide courtesy copies in all future filings.

[2] Respondents request judicial notice of (1) sections of the City Charter (RJN Ex. 1); (2) LAMC section 11.01 (RJN Ex. 2); (3) LAMC section 12.24 (RJN Ex. 3); (4) LAMC section 12.27.1 (RJN Ex. 4); (5) LAMC sections 102.00-103.34 (RJN Ex. 5); (6) the 2021 LOD (RJN Ex. 6); and (7) a proof of service for the Petition in this case (RJN Ex. 7). The first six requests are granted. Evid. Code §§ 452(b)-(c). The court need not grant the seventh because it is always free to review filings in the current case.

[3] Although Hollywood cites to FAP at ¶18, n. 8 (Opp. at 2), this more broadly asserts that none of the offered facts indicated any serious nuisance activities during the Café’s early morning operational hours.

[4] The court need not discuss whether cross-examination is necessary to safeguard due process rights in an administrative abatement proceeding. Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 289, 299. See Reply at 4.