Judge James C. Chalfant, Case Number: 23STCP03230, Date: 2024-05-16 Tentative Ruling

7520 S. Broadway, LLC v. County of Los Angeles;

23STCP03230

Tentative decision on petition for writ of mandate: dismissed as moot

Petitioner 7520 S. Broadway, LLC (“Broadway”) seeks a writ of administrative mandamus compelling Respondent County of Los Angeles (“County”) to vacate the Notice and Order to Comply of August 3, 2022.

The court has read and considered the County’s opposition, has read Broadway’s “trial brief” and County’s objection, and renders the following tentative decision.

Petitioner Broadway filed the Petition for administrative mandamus against Respondent County on September 5, 2023. The Petition alleges in pertinent part as follows.

Broadway holds title to the real property and improvements located at 7520 S. Broadway, Los Angeles, CA 90003 (the “Property”). Pet., ¶ 1. Respondent County operates the Department of Public Health (“DPH”). Pet., ¶ 2.

On August 3, 2022, DPH Inspector Maria Diaz Padilla (“Padilla”) inspected Units F and G of the Property, as well as the exterior of the Property as part of a “Routine Inspection.” Pet., ¶ 3. Reinspection was set for August 25, 2022. Pet., ¶ 3.

On August 25, 2022, Inspector Padilla inspected the Property and issued a “Official Inspection Report” confirming resolution of the 30 “Non-Critical Violations” in the August 3, 2022 report. Pet., ¶ 4. Padilla added three new violations and set an inspection date of September 15, 2022. Pet., ¶ 4.

On September 23, 2022, Inspector Padilla inspected the Property and closed the violations from the August 25, 2022 inspection. Pet., ¶ 5. Padilla added three more violations and set a telephonic “Compliance Review” with Chief Inspector Bria Nash (“Nash”) on September 28, 2022 to discuss outstanding violations in Units F and G. Pet., ¶ 5.

The telephonic “Compliance Review” was held on September 28, 2022, and Chief Inspector Nash indicated that the units at the Property had to be fumigated monthly rather than four units per month. Pet., ¶ 6. An inspection was scheduled for October 14, 2022. Pet., ¶ 6.

On October 14, 2022, Inspector Padilla inspected the Property and closed several violations, leaving 12 Non-Critical Violations pending and adding new violations. Pet., ¶ 8. Padilla set an inspection date for October 18, 2022.

On October 18, 2022, Inspector Padilla inspected the Property and closed several violations, leaving five violations pending, including new violations. Pet., ¶ 9. Padilla set an inspection date for November 9, 2022. Pet., ¶ 9.

On October 24, 2022, Broadway spoke with DPH’s Chief Inspector Nash to address concerns regarding Inspector Padilla’s approach to the inspection process. Pet., ¶ 10. Broadway claimed that Padilla predetermined what new violations would be included in the inspection report before the inspection began. Pet., ¶ 10. Broadway asked that Padilla be replaced as the inspector for the November 9, 2022 inspection. Pet., ¶ 10. DPH refused to replace Padilla but agreed to assign another inspector to jointly inspect the Property with Padilla on October 27, 2022. Pet., ¶ 10.

On October 27, 2022, Inspectors Padilla and Martinez arrived at the Property for an inspection. Pet., ¶ 11. The Inspectors declined to inspect the units because the tenants were absent. Pet., ¶ 11. Broadway emailed Chief Inspector Nash to complain that the inspection could have proceeded without the tenants present and the Inspectors’ refusal to proceed in the tenants’ absence indicated a pattern of unfair conduct favoring tenants. Pet., ¶ 11, Ex. 8. Broadway voiced these same concerns in an email sent on October 31, 2022. Pet., ¶ 12, Ex.9.

In response, Chief Inspector Nash set a new inspection date of November 10, 2022. Pet., ¶ 12. Nash indicated during a phone conversation that DPH would accept photographs of completed work and close the inspection if the tenants were not present on November 10, 2022. Pet., ¶ 10, Ex. 9.

On November 9, 2022, Nash advised Broadway that it would have to fumigate for rodents, explaining that the prior services were for roaches. Pet., ¶ 13. Broadway responded by e-mail to Nash and complained that the process seemed pointless because DPH refused to accept and trust the reports of third party vendors. Pet., ¶ 13.

On November 10, 2022, Inspectors Padilla and Martinez inspected the Property. Pet., ¶ 15. Afterwards, DPH issued a report adding a new violation for rodents only, clearing all other violations and providing a new inspection date of November 24, 2022. Pet., ¶ 15, Ex.11.

On November 14, 2022, Broadway and DPH’s agents had a conference call. Pet., ¶ 16. Broadway voiced concern over the method by which DPH’s inspectors were conducting the inspections. Pet, ¶ 16. Broadway also indicated that the tenants had been planting evidence for the violations to keep the case file on the Property open. Pet., ¶ 16. DPH’s agents indicated Broadway would have to walk the Property with the pest control company to determine potential paths of rodent entry, have the pest company revisit the Property to verify the work, and provide a clean report indicating there were no outstanding issues with rodent entry. Pet., ¶ 16, Ex. 12.

Broadway complied with DPH’s orders regarding the rodent entry issues and all repairs and pest control company inspections were completed on December 8, 2022. Pet., ¶ 17. Broadway forwarded a completed report from Pest Innovations to DHP Branch Director Contreras on December 13, 2022. Pet., ¶ 17, Ex. 13. On December 21, 2022, Chief Inspector Nash requested more pictures of the work completed, about which Broadway complained on December 23, 2022. Pet., ¶ 18, Ex. 14.

On January 12, 2023, Inspectors Castillo and Nareh Derhartounyan inspected the Property. Pet., ¶ 19. Although there were no rodents found, new violations were issued for rat droppings not cleaned up by the tenants. Pet., ¶ 20. A February 8, 2023 e-mail to Broadway scheduled an inspection for the next day, February 9, 2023. Pet., ¶ 21.

On February 9, 2023, Inspectors Castillo and Derhartounyan inspected the premises. Pet., ¶ 22. The violations for rodent droppings from the January 12, 2023 inspection were closed. Pet., ¶ 22. A new violation for rodent droppings in a new location in the unit was added and an inspection date was set for February 23, 2023. Pet., ¶ 22, Ex. 9.

The inspection was rescheduled for March 9, 2023 at Broadway’s request. Pet., ¶¶ 23-27. On March 9, 2023, Inspectors Carillo and Jordan Teramae inspected the Property and all violations were closed except for one based on a tenant complaint that there were roaches inside an electrical outlet. Pet., ¶ 27. Another inspection was set for March 29, 2023 and later rescheduled for April 6, 2023. Pet., ¶ 27.

On April 6, 2023, Inspectors Castillo and Vasquez inspected the Property and added seven new violations. Pet., ¶ 30. An inspection was set for April 20, 2023. Pet., ¶ 30. The inspection was rescheduled for May 9, 2023. Pet., ¶ 31.

On May 9, 2023, Inspectors Castillo and Vasquez inspected the Property and added more violations, including a damaged and removed screen door on the balcony. Pet., ¶ 31. An inspection was scheduled for May 23, 2023 and rescheduled for June 6, 2023. Pet., ¶¶ 32-33. Broadway asked that the inspection be rescheduled, and DPH unilaterally set the inspection date for July 25, 2023. Pet., ¶ 34. The inspection date was rescheduled for August 15, 2023 by Inspector Castillo. Pet., ¶ 34.

Broadway e-mailed DHP on August 3, 2023, objecting to the fact that the inspection had been open for one year and yet DPH refused to close the inspection. Pet., ¶ 34. Broadway also asked that the inspection date be rescheduled. Pet., ¶ 34.

Broadway did not receive a response rescheduling the inspection date. Pet., ¶ 37. Broadway's agent awaited the DPH inspectors at the Property on August 15, 2023. Pet., ¶ 37. No agent appeared. Pet., ¶ 38.

On August 23, 2023, Broadway emailed DPH, objecting to the failure of its inspectors to maintain neutrality in inspecting the Property. Pet., ¶ 38. Broadway also alleged that the tenants were sabotaging the inspections to keep the DPH file open on the Property. Broadway requested a meeting regarding the DPH file on the Property. In response, DPH manager Michelle Tsiebos, threatened an enforcement action against Broadway if the violations set forth in the May 9, 2023 inspection report remained unresolved. Pet., ¶ 38, Ex. 32.

After this threatened enforcement action, Broadway filed the Petition on September 5, 2023.

Petitioner Broadway asks that a writ of mandate issue pursuant to CCP section 1094.5, compelling Respondent County to vacate the Notice and Order to Comply of August 3, 2022. Broadway also asked the court to state any further action by County regarding the Property pending adjudication of this matter. Broadway seeks an award of fees and costs pursuant to CCP section 1021.5.

On September 14, 2023, Petitioner Broadway served Respondent County with the Petition by personal service.

On November 13, 2023, Respondent filed a demurrer. On February 1, 2024, the court overruled the demurrer and ordered Respondent to file an Answer in 20 days.

The County of Los Angeles director of public health, by and through authorized representatives, shall have the authority and duty to make periodic and routine surveys and inspections of all buildings and other premises and places used or intended for use for living quarters, and shall enforce ordinances of Los Angeles County pertaining to the public health and sanitary matters, and statutes relating to the public health. Los Angeles County Code §§ 11.02.030, 11.02.040.

“A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.” CCP §128.5(a).

“Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor, unless one or more successful parties and one or more opposing parties are public entities, in which case no claim shall be required to be filed therefor under Part 3 (commencing with Section 900) of Division 3.6 of Title 1 of the Government Code.” CCP § 1021.5.

“In any civil action to appeal or review the award, finding, or other determination of any administrative proceeding under this code or under any other provision of state law, except actions resulting from actions of the Department of General Services, if it is shown that the award, finding, or other determination of the proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof in his or her official capacity, the complainant if he or she prevails in the civil action may collect from the public entity reasonable attorney’s fees, computed at one hundred dollars ($100) per hour, but not to exceed seven thousand five hundred dollars ($7,500), if he or she is personally obligated to pay the fees in addition to any other relief granted or other costs awarded.” Gov. Code § 800(a).

Petitioner Broadway seeks a writ of administrative mandamus compelling Respondent County to vacate the Notice and Order to Comply of August 3, 2022.

At the February 15, 2024 trial setting conference, the court set trial on May 16, 2024. The parties’ counsel agreed that they would stipulate to a briefing schedule. Broadway’s counsel was directed to lodge a trial notebook, a memory stick containing the parties' briefs in editable Microsoft Word format, and evidence binder no later than May 6, 2024.

Following the trial setting conference, County’s counsel sent an email to Broadway’s counsel suggesting that the case be dismissed in light of the abatement of the August 3, 2022 violations at issue, as reflected in a February 13, 2024 DHP inspection report. Jensen Decl., ¶2. Receiving no response, County’s counsel sent March 29 and April 5 emails, and March 29 and made April 17 phone calls, to the office of Broadway’s counsel. Jensen Decl., ¶6. He reached a paralegal on April 19 and discussed briefing deadlines, but with no date for Broadway’s opening brief. Jensen Decl., ¶6.

County’s counsel spoke again with the paralegal on April 25, but again no indication was forthcoming on when Broadway would file its opening brief. Jensen Decl., ¶7. Although he and the paralegal agreed to speak on April 29, there was no contact that week. Jensen Decl., ¶8.

County’s counsel prepared and filed an opposition on May 3, 2024. Jensen Decl., ¶8. At that time, Broadway had not filed an opening brief. Jensen Decl., ¶8. County’s counsel also lodged the administrative record and a memory stick. Jensen Decl., ¶9.

On May 7, the Dept. 85 clerk emailed all counsel about the failure of Broadway’s counsel to lodge a trial notebook, memory stick, and evidence binder. Jensen Decl., ¶10. Broadway’s counsel did not respond to the clerk’s email. Jensen Decl., ¶10. On May 7, 2024, Broadway served its trial brief by email. Jensen Decl., ¶10.

County objects to Broadway’s trial brief, filed on May 7, 2024. Broadway’s trial brief was not filed pursuant to a stipulated briefing schedule as counsel agreed, and in fact is untimely even under CCP section 1005 as it was filed seven court days, not 16 court days, before the instant trial date. The objection is sustained, and the trial brief is stricken.

County explains that the case is mooted by a February 13, 2024 reinspection which determined that the violations at the Property have been abated. “Although a case may originally present an existing controversy, if before decision it has, through the acts of the parties or other cause, occurring after commencement of the action, lost that essential character, it becomes a moot case or question which will not be considered by the court.” Wilson v. Los Angeles County Civil Service Commission, (1952) 112 Cal.App.2d 450, 453; Colony Cove Props., LLC v. City of Carson, (2010) 187 Cal.App.4th 1487, 1509. "The pivotal question in determining if a case is moot is [] whether the court can grant the plaintiff any effectual relief." Giles v. Horn, (2002) 100 Cal.App.4th 206, 227 (claim that county failed to make required findings to approve contracts rendered moot by contract extensions which were the operative agreements); Eye Dog Foundation v. State Bd. of Guide Dogs for the Blind, (“Eye Dog Foundation”) (1967) 67 Cal. 2d 536, 541.

[1] Broadway purports to seek attorney fees pursuant to CCP section 128.5 and 1021.5, and Govt. Code section 800. CCP section 128.5 provides for an award of attorney fees during the conduct of litigation. Govt. Code section 800(a) concerns review of an administrative proceeding. Despite Broadway’s Petition, it never had an administrative proceeding. Finally, Broadway cannot meet the elements of CCP section, which require in part that it confer a significant benefit on the public or large group of persons. No attorney fees will be awarded to Broadway.