Judge James C. Chalfant, Case Number: 22STCP03855, Date: 2024-03-07 Tentative Ruling

Ben and Reef Gardens, Inc. et al v. Department of Regional Planning for the County of Los Angeles, 22STCP03855

Tentative decision on (1) petition for writ of mandate: denied; (2) motion to dismiss: off calendar as moot

Petitioners Ben and Reef Gardens, Inc. (“B&R”), Ronit Waizgen (“Waizgen”), and Shaul Yakovi (“Yakovi”) seek a writ of mandate compelling Respondent Department of Regional Planning (“DRP”) for the County of Los Angeles (“County”) to set aside its decision to deny Petitioners’ Conditional Use Permit (“CUP”) application, and to process the application so Petitioners can receive a decision on the merits.

DRP moves to have this case dismissed for delay of prosecution. The court has read the motion to dismiss,[1] notice of non-opposition, and renders the following tentative decision.

Petitioners commenced this proceeding on October 24, 2022, alleging a cause of action for administrative mandamus. The Petition alleges in pertinent part as follows.

B&R and Waizgen are owners of 32222 Agua Dulce Canyon Road, Santa Clarita, CA (“Property”). On December 19, 2012, Petitioners filed a CUP application for a special event facility (“Project”) at the Property. Yakovi is the project manager who initiated and managed this CUP application.

The County worked with Petitioners to process the CUP for years. Petitioner remained in constant contact with Regional Planner Richard Claghorn (“Claghorn”) beginning in October 2020. Claghorn’s tone shifted from cooperative to uncooperative between two emails on February 4, 2021.

On March 18, 2021, Claghorn said he could no longer discuss the CUP application with Petitioners. Petitioners also received a letter from DRP that, because of the longstanding inactive status, the Project was scheduled for denial on April 20, 2021. If Petitioners wanted to avoid denial, DRP needed a written request to keep the Project alive by April 18, 2021.

Petitioners submitted such requests on March 22 and April 16, 2021. The second request explained that the County had created a Catch 22 by its inspectors continually refusing requests to inspect the Property to comply with agency demands.

Despite Petitioners’ letters, a DRP hearing officer denied the CUP application for lack of activity on April 20, 2021. Because DRP only asked Petitioners for requests to keep the Project alive which were provided, it should not have even conducted that hearing.

On April 29, 2021, Petitioners appealed the CUP application’s denial to the Regional Planning Commission (“Commission”). Petitioners meanwhile tried to work with County agencies to clarify certain agency requests and address Project safety concerns. These agencies refused to speak to Petitioners, asserting that the Project was “on hold” while Petitioners were the subject of litigation with the County.

The Commission held an online public appeal hearing on July 21, 2021. Petitioners asked for a continuance to work with DRP to bring make the appeal hearing on the merits of the CUP application. The Commission instead allowed public testimony on the CUP’s merits. After the hearing, the Commission concluded that the CUP application was inactive because Petitioners had not demonstrated any progress to resolve the outstanding issues. It therefore upheld the DRP hearing officer’s denial of the CUP application.

On August 2, 2021, Petitioners appealed the Commission’s findings to the County Board of Supervisors. The only issue properly before the Board of Supervisors was whether it should deny the CUP application for inactivity. The Board of Supervisors instead considered the merits of the CUP application and welcomed public comment. It then denied Petitioners’ appeal.

Petitioners seek mandamus compelling DRP to reverse its denial of the CUP application and to process it on the merits.

On October 28, 2022, Petitioners filed a Notice of Errata to add verifications from all three Petitioners to the Petition.

On August 31, 2023, the court denied Petitioners’ request for extra-record discovery and set a trial date for March 7, 2024.

On November 2, 2023, pursuant to DRP’s ex parte application to set the briefing schedule, the court set a December 18, 2023 deadline for Petitioners’ opening brief.

On December 27, 2023, DRP filed notice of Petitioners’ failure to file their opening brief.

On February 27, 2024, the court advanced the trial back to March 7, 2024, and scheduled DRP’s motion to dismiss for failure to prosecute on the same date.

Petitioners commenced this action on October 24, 2022. Schrager Decl., ¶2. The County produced the Administrative Record on June 5, 2023, and certified it on August 31, 2023. Schrager Decl., ¶4, Ex. A.

At a trial setting conference on August 31, 2023, the court set trial for March 7, 2024 and ordered that the parties lodge the trial notebook, administrative record, and joint appendix by February 23. Schrager Decl., ¶¶ 5-7, Ex. B. The parties agreed to stipulate to a briefing schedule. Schrager Decl., ¶7, Ex. B.

On September 22, 2023, DRP emailed Petitioners a proposed briefing schedule. Schrager Decl., ¶9, Ex. C. After Petitioners responded with their concerns, DRP explained its reasoning and asked Petitioners to provide a proposed schedule. Schrager Decl., ¶¶ 10-12, Ex. C. Despite follow-up emails through October 23, 2023, Petitioners never responded. Schrager Decl., ¶¶ 13-16, Ex. C.

On October 27, 2023, DRP sent Petitioners a proposed stipulation for the briefing schedule. Schrager Decl., ¶17, Ex. C. DRP warned that if Petitioners did not respond by November 1, it ould file an ex parte application for the court to set a briefing schedule. Schrager Decl., ¶17, Ex. C. After another warning email on November 1 received no response (Schrager Decl., ¶¶ 18-19, Ex. C), DRP filed the ex parte application on November 2, 2023. Schrager Decl., ¶20.

That afternoon, DRP learned the court had granted the ex parte application with modifications. Schrager Decl., ¶21. The court-ordered briefing schedule required Petitioners to file an opening brief by December 18, 2023. Schrager Decl., ¶22, Ex. D. DRP served Petitioners with the court’s order by email on November 2, 2023. Schrager Decl., ¶23, Ex. D.

Petitioners did not file their opening brief on December 18, 2023. Schrager Decl., ¶24. On December 27, 2023, DRP filed a Notice of Petitioner’s failure to file an opening brief. Schrager Decl., ¶25, Ex. E.

On January 8, 2024, the court sua sponte continued the trial to April 25, 2024 on its own motion. Schrager Decl., ¶26, Ex. F. This order did not change the briefing schedule. Schrager Decl., ¶26, Ex. F.

To date, Petitioners have not filed an opening brief, emailed DRP’s counsel about plans to do so, or met and conferred regarding an alternate briefing schedule. Schrager Decl., ¶27. Due to the Administrative Record’s size, DRP planned to work on the opposition brief as soon as it received the opening brief. Schrager Decl., ¶28. Allowing Petitioners to file and serve a brief now would prejudice the DRP by giving it inadequate time to respond. Schrager Decl., ¶29.

After Petitioners failed to provide a proposed briefing schedule or even respond, DRP filed the ex parte application for the court to do so on November 2, 2023. Schrager Decl., ¶20. The court granted the application and ordered Petitioners to file an opening brief by December 18, 2023. Schrager Decl., ¶22, Ex. D. Petitioners failed to do so by that date or at all.

A petitioner has the burden to demonstrate that the administrative record does not contain sufficient evidence to support the agency’s decision. State Water Resources Control Board Cases, (2006) 136 Cal.App.4th 674, 749. Petitiioners’ failure to file an opening brief citing to the record means that it cannot meet this burden. Moreover, a memorandum of points and authorities is required for mandamus. See CCP §1094; CRC 3.1113(a). The absence of a memorandum is an admission that the motion is not meritorious and may be denied. CRC 3.1113(a).

The petition for writ of mandate will be dismissed with prejudice. See CCP §581(d). The clerk shall prepare a judgment of dismissal with prejudice with the court’s electronic signature.[2]

[1] DRP failed to lodge courtesy copies of the motion 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] DRP separately moves to dismiss the Petition for failure to prosecute. Mot. at 3-4. The court need not analyze this motion, which could not be granted before trial in any event. The motion to dismiss is taken off calendar as moot.