Judge James C. Chalfant, Case Number: 23STCP01475, Date: 2025-03-13 Tentative Ruling

Neutra Jardinette on Marathon QOZ, LLC (“Neutra”) as Real Party-in-Interest moves this court, pursuant to CCP section 2031.060, to grant its motion for protective order regarding Petitioner 737-747 N Western Opportunity Owner LLC’s (“NWOO”) request for inspection of real property. Neutra also requests attorneys’ fees and costs in the amount of $32,205.00 in connection with its motion.

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

Petitioner filed the Petition on May 4, 2023. The operative pleading is the SAP, filed on April 12, 2024, against City, and the Los Angeles County Assessor’s Office and Jeff Prang in his capacity as Assessor (collectively, “Assessor”). The SAP names Neutra Jardinette on Marathon QOZ, LLC (“Neutra”) as Real Party-in-Interest. The SAP alleges claims for mandamus based on a historical property contract, relief under CCP section 526a, mandamus based on California Constitution art. XIII sections 1 and 8, three counts of declaratory relief, and the California Environmental Quality Act (“CEQA”). The SAP alleges in pertinent part as follows.

Petitioner owns real property directly across an alley from the Jardinette Apartments at 5128 W. Marathon St., Los Angeles, CA (“Jardinette Property”). SAP, ¶16. Petitioner has paid taxes on real estate in the City within a year of filing this action. SAP, ¶16.

The unlawful conduct at issue pertains in part to the Jardinette Property, the historical property contract that the Jardinette Property owner and the City entered into on December 16, 2017 (“Jardinette Contract” or “Contract”), and the City’s failure to comply with the California Constitution and state and local laws, including CEQA. SAP, ¶2.

Architects Richard J. Neutra (“Neutra”) and Rudolph M. Schindler (“Schindler”) designed and built the four-story Jardinette Property in 1928. SAP, ¶29. It has long been recognized for its outstanding design and historical significance. SAP, ¶29. In 1986, the Jardinette Property was listed on the National Register of Historic Places. SAP, ¶30. In 1988, the City designated the Jardinette Property as Historic-Cultural Monument No. 390. SAP, ¶30.

The Mills Act (Government Code[1] §50280 et seq.) allows local governments to enter into contracts with owners of qualified historical properties who actively participate in the restoration and maintenance of their historical properties and thereby receive property tax relief. SAP, ¶32.

In 1996, the City adopted its Mills Act Historical Property Program (“Mills Act Program” or “Program”) in Los Angeles Administrative Code (“LAAC”) sections 19.140, et seq. SAP, ¶33. LAAC section 19.140 allows the City Council to contract with an owner or agent of the owner of any qualified historical property, as defined in the Mills Act, provided the contract meets the requirements of sections 50281 and 50282. SAP, ¶33. Pursuant to Article 1.9 of the Revenue and Taxation Code (“R&T Code”), the Assessor may reassess historical properties that are so restricted in a way that lowers their property taxes. SAP, ¶33.

In 2017, then Jardinette Property owner CIP Jardinette Holding, LLC (“CIP”) applied to the City for a reduction in property taxes under the Mills Act and the LAAC. SAP, ¶ 34. The application included a May 15, 2017 Historic Structure Report identifying the Jardinette Property as an International Style multi-family dwelling designed by Neutra and Schindler in 1928. SAP, ¶36.

Petitioner is informed and believes that on July 11, 2017, Chattel Inc. (“Chattel”), an historic preservation consultant under contract with the City, reviewed CIP’s application and conducted an onsite inspection. SAP, ¶38. On August 17, the City’s Cultural Heritage Commission (“CHC”) recommended approval of the application, and the City Council did so. SAP, ¶¶ 39-40.

On December 16, 2017, CIP and the City entered into the Jardinette Contract. SAP, ¶41, Ex. 1. The Jardinette Contract declares the Jardinette Property as an Historic Cultural Monument. SAP, ¶41, Ex. 1. The Contract requires maintenance of the Jardinette Property in a “superior condition” without dilapidated buildings, walls, or windows. SAP, ¶42, Ex. 1. According to the Jardinette Contract’s restoration plan (“Plan”), CIP also was required to restore and rehabilitate the Jardinette Property. SAP, ¶46. The Plan includes renovation of the electrical, plumbing, window repair and replacement, seismic work, interior walls, roofing, flooring, doors, interior and exterior surfaces, hardscape, landscape, bathrooms, kitchens, lobby, and fire escapes. SAP, ¶34, Ex. 1. The proposed completion year for each project was either 2018 or 2022. SAP, ¶ 34, Ex. 1.

Pursuant to the Jardinette Contract, the Assessor specially assessed the Jardinette Property and awarded the owner a significant annual reduction in property taxes. SAP, ¶43.

The Jardinette Property owner has breached the Jardinette Contract in multiple ways, and the City had notice of this breach. SAP, ¶44. The owner failed to perform work in accordance with the Secretary of Interior Standards, maintain the Jardinette Property in superior condition, rehabilitate the Jardinette Property according to the Plan, meet the represented rehabilitation date, and maintain the Jardinette Property’s historic character. SAP, ¶45.

On October 11, 2022, the City Council approved a motion noting that the Jardinette Property had significantly deteriorated and had active code enforcement for unpermitted construction work. SAP, ¶ 48. A bolded statement in the City Council’s’ motion stated that the failure of a Mills Act property owner to preserve, rehabilitate, and maintain the historical property is both a violation of the Mills contract and a misappropriation of property tax dollars that could be allocated to greater community purposes. SAP, ¶ 49, Ex. 2. The motion directed Planning and LADBS to prepare a report in 30 days with recommendations about the Jardinette Property’s existing condition, whether it was meeting the obligations of the Jardinette Contract, and what enforcement or termination actions the City should take. SAP, ¶¶ 49-51, Ex. 2.

On October 14, 2022, Petitioner sent LADBS photographs showing the Jardinette Property had fallen into great disrepair in breach of the Jardinette Contract’s provisions. SAP, ¶52, Ex. 3.

The City failed and refused to address the Jardinette Property’s disrepair and violations of the Jardinette Contract. SAP, ¶58. On November 1, Petitioner’s counsel reiterated to LADBS and the LADBS Commission that Petitioner’s photographs showed that any work proceeding on the Jardinette Property was not conducted in accordance with the Jardinette Contract or applicable law. SAP, ¶54.

On February 9, 2023, Petitioner served California Public Records Act (“CPRA”) requests on Planning, LADBS, the City Attorney, and the Los Angeles Police Department for records pertaining to the City Council’s October 2022 motion. SAP, ¶56. None of the produced documents suggests that the City took any action in compliance with the motion. SAP, ¶57. Petitioner is informed and believes that City staff ignored the City Council’s direction. SAP, ¶¶ 57-59.

Five years have passed since the City entered into the Jardinette Contract. SAP, ¶2. The City has failed to inspect the Jardinette Property to ensure compliance as required by sections 50281 and 50282. SAP, ¶4.

This case also concerns the City’s general violations of Mills Act requirements for historical properties throughout the City. SAP, ¶2. The City has a longstanding policy and practice of ignoring requirements of the Mills Act, including the requirement that it conduct certain inspections. SAP, ¶ 4.

In 2020, the City engaged Chattel to review the Mills Act Program. SAP, ¶61. In June 2022, the City released a report titled “Mills Act Program Assessment and Equity Analysis” (“Mills Report”). SAP, ¶ 61. The Mills Report concluded that the Program fails to meet state law inspection requirements. SAP, ¶ 64. State law requires compliance inspections every five years for each property, yet the City completes only 25% of the required inspections annually. SAP, ¶¶ 54. Only two City staff members administer the 948 properties in the Program on a part-time basis. SAP, ¶ 62.

Based on the Mills Report, Petitioner believes the City has a policy and practice to ignore or violate Mills Act inspection and other requirements. SAP, ¶65. It has demonstrated a pattern and practice that constitutes an overarching, quasi-legislative policy in that refuses to comply with mandatory duties under the Mills Act and other applicable laws. SAP, ¶65. It has a mandatory duty under section 50284 to cancel or enforce Historic Property contracts where the City Council determines the owner has breached any condition of the contract but has failed to do so. SAP, ¶150. Petitioner is informed and believes that the County loses more than $20 million each year in property taxes that could be collected as a result of Mills Act contracts. SAP, ¶68. The City’s allocation of those property taxes is more than $2 million. SAP, ¶68.

The City’s failure to comply with the Mills Act has bestowed onto Real Party and other owners of other historical properties illegal and wrongful tax reductions that have harmed, and will continue to harm, the public by both harming the environment and illegally and wastefully extending special and substantial property tax benefits to scofflaw property owners while failing to comply with, inter alia, duties under California Constitution art. XIII, the Mills Act, other state laws including CEQA, LAAC mandates and the City Council’s action of October 11, 2022, and by failing to enforce the Jardinette Contract and depriving City and Los Angeles County (“County”) residents of intended benefits of the Contract. SAP, ¶ 101.

CEQA and the LAAC section 22.171.14 require the preparation and circulation of an environmental document disclosing all potentially significant environmental impacts on the historic Jardinette Property caused by the City’s failure to enforce the Mills Act Contract, and by the City allowing waste and damage to the historic resources on the Property. SAP, ¶7.

On October 11, 2022, the City Council took action that the “existing condition” of two properties subject to Historical Property Contracts with the City (one of which was the Jardinette Apartments) “appear to be in violation of the terms of their contracts.” SAP, ¶96, Ex. 2. The City Council action directed the designated departments to conduct the described inspection of the Jardinette Apartments building and Property and to prepare a report with recommendations within 30 days. The 30-day period ended November 10, 2022. It took the designated departments 404 days to prepare a report, and the report was facially deficient in violation of the City Council’s order and/or was an abuse of administrative discretion. SAP, ¶98.

On November 20, 2023, Planning and LADBS submitted to the City Council PLUM Committee, and the PLUM Committee reviewed and accepted, a 2023 status report putatively assessing whether the Jardinette Property was in compliance with its Mills Act Contract. SAP, ¶99. Despite acknowledging the Property’s deteriorated state and ongoing unpermitted work, the PLUM Committee failed to take further action with respect to the Property and failed to advance the 2023 status report to the full City Council. SAP, ¶99.

Petitioner has no plain, speedy or adequate remedy available in the ordinary course of law to redress the claims alleged in the SAP. Petitioner, as well as members of the general public and citizens of the City and County, will suffer irreparable harm if the relief requested herein is not granted and if the City is not compelled to comply with the law. SAP, ¶100.

The SAP’s first cause of action is for declaratory relief and a writ of prohibition that section 50287 is facially unconstitutional. The purpose of California Constitution art. XIII, section 8 (“art. XIII, section 8”) is the preservation and restoration of property of historic significance for all People of California. In Proposition (“Prop”) 7, the People granted the Legislature authority to define property of historic significance and restrictions and uses for the property. The People made mandatory that the historical significance be enforceably restricted with the obvious intent that exceptions to equal taxation required by California Constitution art. XIII, §1 (“art. XIII, §1”) be limited to properties that fulfill the historic preservation purpose of Prop 7. SAP, ¶107.

A statute that is inconsistent with or contravenes the California Constitution is void. Nougues v. Douglass, (1857) 7 Cal. 65, 70. SAP, ¶112. Section 50287 is inconsistent with and contravenes art. XIII, section 8 because it fails to further its purpose that only enforceably restricted historic properties will receive the tax benefit. The amendment of the Mills Act in 1977 specified its purpose was to implement Prop 7 (art. XIII, §8). At that time, any landowner could sue to enforce art. XIII, section 8 pursuant to section 50287. The right of the People to sue to require the enforceably restricted mandate of the Constitution is necessarily tied to the purpose of the tax benefit to ensure compliance with the constitutional provisions the People enacted. SAP, ¶114. Because section 50287 is inconsistent with and contravenes the core requirements of art. XIII, section 8, it is facially unconstitutional and void. SAP, ¶115.

The second cause of action is for declaratory relief and writ of prohibition based on equal protection. Section 50287 allows only landowner taxpayers with historic property contracts to sue for breach of Mills Act contract conditions, preventing landowner taxpayers without Mills Act contracts, like Petitioner, from suing historic property owners and/or cities or counties for breach of Mills Act contract conditions. This unequal treatment of similarly situated taxpayers violates the Equal Protection Clause of the California and U.S. Constitutions. Petitioner and Real Party are both landowners in the City subject to property tax assessment and are thus similarly situated, but they are treated unequally because Petitioner is denied access to the courts to sue to enforce art. XIII, section 8 and the Mills Act. Petitioner is a taxpayer that must have the right to sue to enforce the California Constitution and statutes to ensure that beneficial tax assessment is applied only to properties that meet the purpose of art. XIII, section8. SAP, ¶121.

There is no rational basis to deprive third party taxpayer landowners the right to sue to enforce Mills Act contracts to ensure properties that are designated historic are legitimately receiving the tax benefit that only applies when the restrictions and uses of the properties are enforceably restricted. SAP, ¶130.

The third cause of action is for mandamus to compel the City to inspect the Property. Sections 50281 and 50282 mandate that the City inspect the interior and exterior of the premises prior to a new agreement, and every five years thereafter, to determine the owner’s compliance with the Jardinette Contract. SAP, ¶137.

The City Council’s action of October 11, 2022 required an inspection of the conditions of the Jardinette Apartments by City staff within 30 days. SAP, ¶138. City staff did not inspect the Jardinette Apartments for more than one year, and staff did not issue a report to the City Council until November 20, 2023. City staff violated the City Council’s to report on current Property conditions with reference to the specific terms of the Contract. SAP, ¶139.

In its administrative capacity to enforce the Mills Act Contract, the City has manifestly abused its discretion in failing to inspect the Property and require the restrictions and uses of the Jardinette Property for the historic property tax benefit to be enforceably restricted as required by art. XIII, section 8, the Mills Act, and the Jardinette Contract. The City has abused its discretion by violating constitutional and statutory mandates and conditions for the historic property tax benefit and will continue to violate constitutional and statutory mandates unless the remedies sought herein issue. SAP, ¶142.

The fourth cause of action is for taxpayer relief under CCP section 526a. The City acted arbitrarily, capriciously, and unreasonably in exercise of its obligations under art. XIII, sections 1 and 8, the Mills Act, and LAAC section 19.140 et seq. by completely failing to require compliance with the enforceably restricted obligation of the Jardinette Contract with Real Party. Their manifest abuse of discretion has resulted in loss of property tax revenue collection from Real Party for a tax benefit that violates constitutional and statutory requirements. An action lies under Code of Civil Procedure (“CCP”) section 526a not only to enjoin “waste of . . . funds . . . of a local agency,” but also to enforce the government’s duty to collect funds. SAP, ¶146.

The fifth cause of action is for mandamus to compel the City to comply with art. XIII, sections 1and 8 and the Mills Act for all historical properties. Petitioner is informed and believes that the City has demonstrated a pattern and practice that constitutes an overarching, quasi-legislative policy of City officials to ignore and otherwise violate ministerial, mandatory duties imposed by law in connection with enforcement of the City’s Historic Property contracts and the Mills Act, including but not limited to failure and refusal to inspect the interior and exterior of all historic properties subject to Historic Property contracts every five years to determine the property owners’ compliance with their respective Historic Property contracts. SAP, ¶¶ 150, 153.

The sixth cause of action seeks declaratory relief. An actual and present controversy has arisen and now exists between Petitioner and the City whether it has demonstrated a pattern and practice that constitutes an overarching, quasi-legislative policy of City officials to ignore and otherwise violate mandatory duties imposed by law in connection with enforcement of Mills Act contracts. SAP, ¶156.

An actual and present controversy also exists whether (a) the City’s power and authority to enable historic property in the City to be taxed at less than fair market value exists only when such historic property is “enforceably restricted” as specified in the Mills Act, (b) the City’s overarching, quasi-legislative policy or administrative policy and practice to ignore and otherwise violate duties imposed by law is unconstitutional in violation of art. XIII, section 8 as in excess of the City’s power and authority, and (c) with respect to each of the City’s approximately 948 existing Historical Property contracts and all future such contracts, the City is required to comply with all requirements of art. XIII, sections 1 and 8 and the Mills Act. SAP, ¶157.

The seventh cause of action is mandamus for a violation of CEQA. The City Council’s October 11, 2022 motion recognized that the historic Jardinette Property “had significantly deteriorated seemingly in violation of the Mills Act contract. Based on the City Council’s concerns, the City had a duty to further prevent such environmental damage to the National Register and Los Angeles Historic-Cultural Monument Jardinette Property as an historic resource. This duty included a duty under CEQA to conduct an investigation analyzing all potentially significant impacts of the ongoing significant deterioration of the Property in an initial study. SAP, ¶160.

A project that may cause a substantial adverse change in the significance of a historical resource is, by definition, a project that may have a significant effect on the environment. Pub. Res. Code §21084.1. If the study confirmed the City Council’s concern, the City was required to prevent further damage in a full CEQA document by proposing project changes through feasible alternatives and mitigation measures and circulate the document for public review and comment. Pub. Res. Code §15002(a). SAP, ¶161.

On November 20, 2023, the PLUM Committee received and accepted the 2023 status report purportedly assessing whether the Jardinette Property was in compliance with the Jardinette Contract. The PLUM Committee failed to take any action on the status report. SAP, ¶162. The PLUM Committee’s failure to take action on the 2023 status report effectively granted approval to the deterioration and unpermitted work at the Jardinette Property, and tacitly authorized Real Party to persist in and maintain its unlawful status quo, which actions constitute a “project” under CEQA. SAP, ¶162.

Petitioner requests issuance of a writ of mandamus ordering the City to immediately comply with all requirements of CEQA, including disclosing, studying in a legally compliant CEQA document, and mitigating the ongoing adverse impacts to the Jardinette Property’s protected historic resources. SAP, ¶164.

Petitioner seeks a writ of mandate, and declaratory relief, compelling the City to (1) inspect the Jardinette Property’s interior and exterior to determine Jardinette Contract compliance, (2) cause preparation of a written report of the results of the inspection with compliance determinations for all conditions in the Jardinette Contract and the City Council’s October 11, 2022 order; and (3) either cancel the Jardinette Contract or bring legal action to enforce it upon a determination of non-compliance. SAP Prayer, ¶6.

Petitioner seeks injunctive relief under CCP section 526a (1) prohibiting the assessment of the Jardinette Property for taxation at a special or reduced rate, (2) compelling the City to restore the non-Mills Act taxation rate, and (3) compelling the recovery and disgorgement of all improperly reduced taxes on the Jardinette Property and related penalties. SAP Prayer, ¶7.

Petitioner also seeks a writ of mandate and declaration compelling the City to comply with art. XIII, section 8 and the Mills Act with respect to all historical properties and its obligation under historical property contracts to inspect them every five years to determine and compel compliance. SAP Prayer, ¶¶ 8-10.

Petitioner seeks a writ of mandate under CCP section 1094.5 ordering the City to comply with CEQA, including: (a) to set aside and void all approvals and permits related to the Jardinette Property; (b) to conduct a fully legal and proper CEQA review; (c) to take all further specific actions as shall be necessary to bring its decisions, determinations and findings into full compliance with CEQA, the CEQA Guidelines, the Los Angeles Municipal Code, the LAAC, and all other laws applicable to any project activity; (d) an injunction restraining the City from issuing any further discretionary or ministerial entitlements relating to the project until it has taken all actions necessary to bring its environmental review into compliance with CEQA; and (e) enjoining Real Party from implementing any purported entitlements or performing any construction until the City’s environmental review. SAP Prayer, ¶ 11(a)-(e).

On November 15, 2023, Petitioner filed and served the FAP on all Respondents and Real Party. Also on November 15, 2023, Petitioner dismissed the FAP against the Assessor.

On March 7, 2024, the court sustained the demurrer to the FAP with leave to amend.

On April 12, 2024, Petitioner filed and served the SAP on all Respondents and Real Party.

On August 1, 2024, the court sustained the demurrer to the SAP as to all causes of action except 3, 5, and 6.

On January 3, 2025, Petitioner served a Request for Inspection of Real Property pursuant to CCP § 2031.010 et seq., demanding entry onto the Jardinette Property. Declaration of Joshua Stambaugh (“Stambaugh Decl.”), ¶2, Ex. A.

On February 4, 2025, counsel for Real Party participated in a telephone meet and confer with Petitioner’s counsel, regarding the requested site inspection. Stambaugh Decl., ¶12. Petitioner’s counsel refused to withdraw the inspection demand and insisted on proceeding. Stambaugh Decl., ¶15.

Unless otherwise provided by the California Constitution or federal law, all property is taxable and shall be assessed at the same percentage of fair market value. art. XIII, §1(a). To promote the preservation of property of historical significance, the California Constitution authorizes the Legislature to define such property and provide that, when the land is enforceably restricted in a manner specified by the Legislture to a specified use, it shall be valued for property tax purposes only on a basis that is consistent with its restrictions and uses. art. XIII, §8.

The R&T Code defines “enforceably restricted” for purposes of art. XIII, section 8 as property that is subject to a historical property contract executed pursuant to the Mills Act. R&T Code §439. Similarly, “restricted historical property” refers to property defined as qualified historical property under the Mills Act that is subject to a historical property contract. R&T Code §439.1. No property shall be valued pursuant to R&T Code section 439 et seq. unless such an enforceable restriction is signed, accepted, and recorded on or before the lien date for the fiscal year in which the valuation would apply. R&T Code §439.4.

“Qualified historical property” is privately owned property which is not exempt from property taxation and is either (a) listed in the National Register of Historic Places or located in a registered historic district, or (b) listed in any state, city, county, or city and county official register of historical or architecturally significant sites, places, or landmarks. §50280.1. Upon an owner or agent’s application, the legislative body of a city, county, or city and county may contract with the owner or agent to restrict the use of the property in a manner which the legislative body deems reasonable to carry out the purposes of the Mills Act and R&T Code section 439 et seq. §50280. The contract shall meet the requirements of sections 50281 and 50282. §50280.

Where applicable, the contract with the owner of qualified historical property shall provide for (1) preservation of the property and its restoration or rehabilitation, where necessary, to conform to the rules and regulations of the Office of Historic Preservation of the Department of Parks and Recreation, the United States Secretary of the Interior’s Standards for Rehabilitation, and the State Historical Building Code; and (2) inspection of the interior and exterior of the premises by the city, county, or city and county, prior to a new agreement, and every five years thereafter, to determine the owner’s compliance with the contract. §50281(b).

The term of the contract shall be for a minimum of ten years. §50281(a). Each contract shall provide that a year shall be automatically added on the anniversary date of the contract, or on such other date specified in the contract, unless notice of non-renewal is given. Each contract shall provide that after five years, and every five years thereafter, the city, county, or city and county shall inspect the interior and exterior of the premises to determine the owner’s continued compliance with the contract. §50282(a).

If the legislative body determines that the owner has breached any of the conditions of the contract or has allowed the property to deteriorate to the point that it no longer meets the standards for a qualified historical property, the legislative body shall either (a) cancel the contract via the procedures in sections 50285 and 50286 or (b) bring any action in court necessary to enforce a contract, including an action for specific performance or an injunction. §50284. No contract shall be cancelled until the legislative body has given notice of, and held, a public hearing. §50285. If the contract is cancelled, the owner shall pay a cancellation fee equal to 12 ½ % of the current fair market value of the property. §50286.

As an alternative to cancellation of the contract, a landowner that is a party thereto may bring any action in court necessary to enforce a contract, including by specific performance or injunction. §50287.

The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. CCP §2017.020(a). The court may make this determination pursuant to a motion for protective order by a party or other affected person. Id. A protective order cannot be granted ex parte. St Paul Fire & Marine Ins. Co. v. Superior Court, (1984) 156 Cal.App.3d 82, 85-86.

CCP sections 2025.420, 2030.090, 2031.060, 2032.510, and 2033.080 provide that a party upon whom interrogatories, inspection demands or request for admissions have been propounded may promptly move for a protective order. This motion shall be accompanied by a declaration stating facts showing a good faith attempt at an informal resolution of each issue presented by the motion. CCP §§ 2017.020(b), 2016.040.

As relevant, CCP section 2031.060(a) authorizes a party to move for a protective order when an inspection demand is improper, irrelevant, unduly burdensome, or constitutes an abuse of the discovery process. The court, for good cause shown, may “make an order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, [an order] [t]hat all or some of the items or categories of items in the demand need not be produced or made available at all.” CCP §2031.060(b)(1).

The court shall impose monetary sanctions under CCP section 2023.010 against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust. CCP §2017.020(b). There are numerous other statutes that authorize sanctions under CCP section 2023.010 against any “party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order.” See e.g., CCP §§ 2019.030(a) (restrictions on frequency and extent of discovery); 2025.420 (depositions), 2030.090 (interrogatories), 2031.060 (requests for production); and 2032.510 (physical and mental examinations), and 2033.080 (requests for admission).

On January 3, 2025, Petitioner served a Request for Inspection of Real Property pursuant to CCP § 2031.010 et seq., demanding entry onto the Jardinette Property. Stambaugh Decl., ¶2, Ex. A.

On February 4, 2025,Joshua S. Stambaugh, Esq., (“Stambaugh”), counsel for Real Party, participated in a telephone meet and confer with Petitioner’s counsel regarding the requested site inspection. Stambaugh Decl., ¶12. Stambaugh explained that any of Petitioner’s remaining claims in the litigation did not concern any rights or remedies against Real Party and that Petitioner’s only surviving causes of action concerned the City’s duty to inspect Mills Act properties—a matter that does not require Petitioner to conduct any independent site inspection. Stambaugh Decl., ¶13. Stambaugh outlined Real Party’s objections to the inspection on the grounds that it was irrelevant, intrusive, harassing, and unduly burdensome. Stambaugh reiterated that the City had already conducted extensive inspections of the Jardinette Property, making any additional inspection by Petitioner completely unnecessary. Stambaugh Decl., ¶14.

Despite attempts to resolve the issue informally, Petitioner’s counsel refused to withdraw the inspection demand and insisted on proceeding. Stambaugh Decl., ¶15.

The Jardinette Property is a vacant building, not a fully occupied residence or business, and Petitioner has no legal right to access it. Stambaugh Decl., ¶3. Petitioner is neither an owner, tenant, nor a party to the Mills Act contract governing the Jardinette Property. Stambaugh Decl., ¶3. Petitioner has no legitimate need to inspect the Jardinette Property because all relevant information regarding its condition is already available in the City’s inspection records. Stambaugh Decl., ¶5.

The City routinely inspects the Jardinette Property in connection with various permits and regulatory compliance requirements. Stambaugh Decl., ¶¶ 4,6. LADBS and other City agencies have carried out the inspections. Stambaugh Decl., ¶6. LADBS has already inspected the Jardinette Property eight times in 2025 and performed no less than 69 inspections since the beginning of 2024; 20 different City inspectors have conducted the inspections. Stambaugh Decl., ¶7, Exs. B-L.[3]

At the hearing on August 1, 2024, the court sustained the City’s demurrer to all of the SAP’s causes of action, except three, five, and six, stating that Petitioner has no standing to enforce the Mills Act contract and no taxpayer standing to challenge the City’s discretionary enforcement decisions.[4] Stambaugh Decl., ¶10, Ex M. The court expressly ruled that the only surviving claims concern the City’s duty to inspect Mills Act properties. Stambaugh Decl., ¶10, Ex. M.

The court ruled: “So we are going to trial on the City’s duty to inspect the Jardinette and other properties. You can argue, I suppose, arbitrary and capricious if they have inspected and the inspection is not to your liking. I am not persuaded at this time that there is any duty to enforce – there is any ministerial duty to enforce the City Council’s motion. I don’t see it; so that is not part of my overruling. It is only the inspections.” Stambaugh Decl., ¶10, Ex M, p.44.

Real Party’s attorneys’ fees for this motion are at least $20,345.00, and $60.00 in court costs, for a total fee of more than $20,405. Stambaugh Decl., ¶¶ 17-21, Ex. N. Counsel expects an additional $11,800 for the reply and attending the hearing for an overall fee incurred for the motion of $32,145. Stambaugh Decl., ¶22.

During the meet and confer on February 4, 2025, Petitioner’s counsel, James S. Link, Esq. (“Link”), stated that Petitioner has a right to challenge the inspection of the Jardinette Property by the City. Link Decl., ¶3. Link stated that the court had ruled that Petitioner has a right to challenge the City’s inspection of the Jardinette Apartment because it remains at issue in the third cause of action. Link Decl., ¶3. The court ruled that Petitioner has a right o argue the City has not done what it was required to do under the Mills Act, including that the inspection was arbitrary and capricious if the inspection “is not to your liking.” Link Decl., ¶3.

Link also said that Petitioner had no intention of inspecting the property for days. Link Decl., ¶3. The purpose of the request to include measuring and/or inspecting is to avoid an objection to measuring and/or survey should Petitioner’s expert believe it is necessary to determine the arbitrariness or capriciousness of the inspection by the City. Link Decl., ¶3.

Opposing counsel offered no discussion about purported safety concerns for the inspection, nor was there detail of the purported inspections of the property by the City. Link Decl., ¶5. Had there been some actual statement of these objections before the meet and confer, a compromise would have occurred on length of time for inspection and other issues. Link Decl., ¶5. Further, a far more meaningful discussion would have occurred respecting the need for the inspection of the property, including addressing the claim that the City has made additional Mills Act inspections. Link Decl., ¶5. Opposing counsel did not state that Real Party would be relying on LADBS inspections to show compliance with the Mills Act. Link Decl., ¶5.

At the August 1, 2024 hearing on the City’s demurrer, the court and counsel were advised by Stambaugh of an inspection of the Jardinette Property scheduled for September 17, 2024. Link Decl., ¶6. The only inspection for September 17, 2024 shown in Stambaugh’s declaration is listed as “Rough 9/17/2024 Corrections Issued Preston Gilliard”. Link Decl., ¶6.

According to the City, the persons knowledgeable about inspections of the Jardinette property and Mills Act properties are Lambert Giessinger (Office of Historic Resources), Melissa Jones (Office of Historic Resources), and Cultural Heritage Commission President Barry Milofsky. Link Decl., ¶7, Ex. 2. None of those persons are listed as having inspected the Jardinette Property in the Stambaugh declaration’s list of inspections. Link Decl., ¶7.

Petitioner’s architecture expert, Fances Offenhauser, opines that a February 10, 2025 from the PLUM Committee to the City Council is inadequate because it presents no facts after November 2023, there is no inspection report, it does not include a checklist of progress, reports from an historic monitor, and open permits mean that work has not been completed. Offenhauser Decl., ¶¶ 10-19.[5]

On February 3, 2025, Stambaugh emailed opposing counsel to engage in the meet-and-confer process regarding Petitioner’s site inspection demand, explaining that the request was overbroad, irrelevant to the remaining claims in this case, and wholly improper under California law. Stambaugh Decl., ¶3.

On February 4, 2025, at 3:00 p.m., Stambaugh conducted a 23-minute telephonic meet and confer with opposing counsel regarding the inspection demand. Stambaugh Decl., ¶4. During this call, Stambaugh explicitly stated Real Party’s objections: (1) the inspection was irrelevant because the court had already ruled that Petitioner has no standing to enforce the Mills Act or challenge the condition of the property; (2) the City—not Petitioner—controls enforcement and compliance with the Mills Act; and (3) Petitioner’s demand was harassing, intrusive, and abusive. Stambaugh Decl., ¶4. These objections were also raised at the demurrer hearing and in prior communications. Stambaugh Decl., ¶6.

In the meet and confer, Petitioner provided no case law, no statutory authority, and no rational explanation why it needed access to a private property that is no longer at issue in this case. Nor did Petitioner make an effort to narrow the scope of the request or propose any reasonable compromise. Stambaugh Decl., ¶7. Had Petitioner done so, Real Party would have considered alternative resolutions. Stambaugh Decl., ¶7.[6]

Real Party moves, pursuant to CCP section 2031.060, for a protective order regarding Petitioner’s request for inspection of the property.

Petitioner argues that Real Party’s motion is untimely, and all objections have been waived. CCP section 2031.060(a) requires a “prompt” motion for a protective order. Real Party was served with the inspection demand on January 3, 2025 and had 30 days plus two court days, or until February 5, 2025, to file a response. CCP §§ 2031.260(a), 1010.6. Failure to serve a timely response waives all objections. CCP §3=2031.3000(a). Petitioner argues that Real Party never filed objections, only filing the instant motion one day late on February 6, 2025. Therefore, all objections were waived. Moreover, a motion for a protective order is not a substitute for objections. Additionally, the motion was not made promptly and should be denied as untimely. Opp. at 8-9.[7]

Real Party replies that it made a timely response because a February 3 email from Stambaugh stated that the inspection demand was “overbroad, irrelevant to the remaining claims in this case, and wholly improper under California law.” Reply Stambaugh Decl., ¶3. He also stated in the February 4, 2025 meet and confer that the inspection was irrelevant, the City controls enforcement and compliance with the Mills Act, not Petitioner, and the inspection demand was harassing, intrusive, and abusive. Reply Stambaugh Decl., ¶4. Reply at 3.

This is inadequate. CCP section 2031.210 requires a formal response in an explicit format. Real Party’s informal email and telephone conversations are not compliant. Real Party’s objections to the conduct of the inspection – including scope, measuring, and survey -- are waived.

However, the court will not rely on this waiver to deny the motion for a protective order insofar as it seeks to prevent any inspection at all. Nor will the court deem the motion not to have been promptly made under CCP section 2031.060(a). As a result, the court will address the motion’s merits.

Real Party argues that Petitioner’s demand for inspection is a blatant abuse of the discovery process in light of the court’s ruling on the City’s demurrer to the SAP. The court rejected Petitioner’s standing to enforce the Mills Act, no constitutional claim, and no taxpayer standing to pursue a waste claim. All Petitioner had left was a challenge to the City’s ministerial duty to conduct inspections. Petitioner could challenge “only the inspections”. Mot. at 8-9.

From this ruling, Real Party argues that Petitioner has no right to conduct discovery of the Jardinette Property. None of the remaining claims involve any allegations against Real Party. The surviving claims focus on whether the City has fulfilled its five-year inspection obligations, which can be ascertained solely from City records. Mot. at 10, 12. The requested inspection is overly broad in that it seeks the inspection poses to measure and survey all elements of the interior and exterior of the Jardinette Property. Mot. at 10. The inspection demand is also unnecessary because the City routinely inspects the Property. Mot. at 13. The inspection also poses safety and liability problems because the Property is vacant and undergoing maintenance. A third-party inspection would divert resources and personnel from critical restoration efforts. Real Party seeks a protective order to preclude Petitioner’s irrelevant and oppressive abuse of the discovery process. Mot. at 11.

Real Party interprets the court’s ruling too narrowly. As Petitioner argues (Opp. at 5-6), the third cause of action concerns whether the City abused its discretion in the inspection of the Jardinette Apartments. SAP ¶¶ 135-43. At the demurrer hearing, the court ruled: “Okay. So the demurrer is sustained to all cause of actions except three, five, and six, to which the demurrer is overruled. “So we are going to trial on the City’s duty to inspect the Jardinette and other properties. You can argue, I suppose, arbitrary and capricious if they have inspected and the inspection is not to your liking.” Mot., Ex. M, p.44.

This means the fact and adequacy of the City’s Mills Act inspections are at issue. If the current condition of the Property shows that the City has not inspected, or that its inspections were so inadequate as to be arbitrary and capricious, then an inspection could lead to relevant evidence at trial. Petitioner also is correct that it need not rely on LADBS inspections of plumbing, electrical, framing, etc. as showing a Mills Act inspection. Opp. at 6, 12-13, 15.

The motion for a protective order is denied. The court will discuss with counsel when and how the inspection will take place.

[1] All further statutory citations are to the Government Code unless otherwise specified.

[2] The court has ruled on the written evidentiary objections of both parties. The clerk is directed to scan and electronically file the rulings.

[3] Real Party also filed the Declaration of Cameron Hassid which discusses the motives and actions of Petitioner’s owner. Hassid Decl., ¶¶ 4-6.

[4] The third cause of action is for mandamus to compel the City to inspect the Jardinette Property, the fifth cause of action is for mandamus to compel the City to comply with art. XIII, sections 1 and 8 and the Mills Act for all historical properties, and the sixth cause of action seeks declaratory relief.

[5] Petitioner also filed the Declaration of Zach Lasry which responds to the motive and actions discussed in the Hassid declaration. Lasry Decl., ¶¶ 4-6.

[6] Real Party also filed in reply a second Declaration of Cameron Hassid which responds to Lasry’s declaration concerning their relationship.

[7] Petitioner also argues that Real Party did not adequately meet and confer on issues of inspection scope and safety concerns. Opp. at 10-11. This objection is overruled.