Judge James C. Chalfant, Case Number: 23STCP03550, Date: 2024-04-16 Tentative Ruling

Respondent City of Los Angeles (“City”) and Real Party-in-Interest Tanager View LLC (“Tanager” or “Developer”) demur to the Petition filed by Petitioners James Samatas (“Samatas”) and Steven Lintz (“Lintz”).

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

On September 25, 2023, Petitioners Smatas and Lintz filed the verified Petition against Respondents City, Los Angeles Department of Building and Safety (“LADBS”), and the Board of Building and Safety Commissioners (“BBSC”). The Petition names Tanager and Berserker LLC (“Beserker”) as Real Parties-in-Interest and alleges claims for mandamus and declaratory relief. The Petition alleges in pertinent part as follows.

Petitioner Lintz is the current owner of 1424 N. Tanager Way (“1424 Tanager”) which neighbors the Property. Pet., ¶5. Lintz acquired 1424 Tanager from Petitioner Samatas, who initiated a series of appeals against the Property based on building height violations, as well as two prior lawsuits filed August 16, 2016 and March 29, 2018, respectively. Pet., ¶¶ 5, 16. Lintz has provided Samatas with a Special/Limited Power of Attorney in connection with the claims that are the subject of this action. Pet., ¶5.

The parties’ dispute concerns an abuse of discretion by Respondent LADBS in allowing the construction of an over-height 14,000 square-foot residence (“Project”) located at 1410 N. Tanager Way in the Hollywood Hills (“Property”) in contravention of the Project’s original building permits. Pet., ¶1. A supplemental permit and a certificate of occupancy were improperly issued. Id. The property is subject to Los Angeles Municipal Code (“LAMC”) section 12.26.K. Pet., ¶5. Respondent BBSC violated the applicable 30-foot height limit despite Petitioners’ evidence that Real Party Tanager illegally manipulated the Property’s topographical lines to misrepresent the Project’s height so that an illegal structure was built. Pet., ¶¶ 1, 8. Petitioners challenge LADBS’ actions allowing the Project to be constructed in violation of applicable height limits and the Project’s original building permits, including LADBS’ initial denial of Petitioners’ appeal and the BBSC’s subsequent denial of appeal and request for reconsideration. Pet., ¶4.

In connection with the replacement of the Property’s existing residence of less than 3,000 square feet, LADBS issued permits under the 2011 Hillside Ordinance (“Hillside Ordinance”) for the grading and construction of an approximately 13,471-square-foot residence. Pet., ¶13. The Hillside Ordinance, codified at LAMC section 12.21.C.10(d)(2), allows a project to exceed the maximum envelope height only with Zoning Administrator (“ZA”) approval. Pet., ¶34. At the time, the Project’s building permits showed a new 30-foot structure that would be built in compliance with the applicable height limit. Pet., ¶1.

In May 2018, when it became apparent that the Project’s construction violated the 30-foot height noted on the plans, Petitioner Samatas appealed to LADBS. Pet., ¶15. LADBS agreed with his appeal that the Project was over-height and accordingly refunded Petitioner’s appeal fee. Id. LADBS did not require the over-height construction to be demolished. Id.

In October 2018, after Developer exerted its influence with the City, Petitioner learned that LADBS had issued a supplemental permit for a new, fictional height limit of 36 feet which violates the zoning code and allowed the as-built structure that exists today. Pet., ¶15.

Given that the original plans used the 30-foot height limit permitted by the zoning code, Petitioner Samatas filed appeals from the building permits pursuant to LAMC section 12.26.K. Pet., ¶15. LADBS denied the appeals and forced an appeal of that determination to the ZA. Id. Despite the fact that the structure already exceeded 30 feet, Planning stated it was too early to determine whether the residence would violate the LAMC’s height limit upon completion. Id. LADBS advised that it would measure the height of the Project after the building was completely constructed but before a certificate of occupancy was issued. The ZA did not take action on the appeal for years and ultimately terminated the appeal without prejudice on June 3, 2022 with an invitation to file a new appeal at a subsequent time. Id. This decision resulted in approximately a three-year delay. Id.

After the Project was completed, a licensed surveyor, Neil Hansen ((“Hansen”) of N.C. Hansen, Inc., was retained and surveyed the as-built height of the Project and issued a report dated June 30, 2022 (“Hansen Report”). Pet., ¶17, Ex. B. The Hansen Report concluded that the Project significantly exceeds the 30-foot maximum envelope height permitted by the City’s Hillside Ordinance. Pet., ¶18.

On August 1, 2022, Petitioner Samatas filed an appeal from the Property’s building permits pursuant to LAMC section 12.26.K on the grounds that LADBS abused its discretion in allowing the construction of a single-family dwelling that exceeded the maximum building envelope height required for buildings in the Hillside Area in contravention of LAMC section 12.21.C.10(d)(1) of the Hillside Ordinance. Pet., ¶19, Exs. A, C. On December 5, 2022, LADBS summarily denied the building permit appeal. Pet., ¶22, Ex. F.

LADBS informed Petitioner Samatas that the appeal would be forwarded to the BBSC for a determination instead of forwarding the appeal to a ZA and the Planning Commission as required under LAMC section 12.26.K. Pet., ¶¶ 23, 26. By doing so, LADBS did not have to prepare a written report with findings as required by the LAMC. Id.

The appeal was set on BBSC’s August 22, 2023 agenda. Pet. ¶24. On August 21, 2023, Petitioners’ counsel submitted a letter to the BBSC which outlined why it lacked jurisdiction and that the appeal should be heard by the Director of the Department of Planning (“Planning”). Pet., ¶25, Ex. G.

Despite not having the authority to do so pursuant to LAMC section 98.0403.1(b)(2), the BBSC heard Petitioners appeal. Pet. ¶ 26. On August 24, 2023, the BBSC issued its Final Action letter which denied Petitioners’ appeal, affirming LADBS’ prior denial of the building permit appeal. Pet. ¶27, Ex. H. The denial was substantively based on testimony by LADBS employee Victor Cuevas (“Cuevas”) that he visited the Property and performed a measurement by “dropping a tape measure.” Id. Cuevas’ tape measure effort would not accurately measure height because there is a large balcony below the roof and extending east for a significant distance. Id. Measurement of height under the Hillside Ordinance also is based off natural grade, which Cuevas would not have been able to identify by dropping a tape measure. It further is based on a point five feet from the building. Id. Neither Petitioners’ counsel nor Hansen were permitted to respond to Cuevas’ testimony. Id.

On August 25, 2023, Petitioners’ counsel filed a Request for Reconsideration from the BBSC’s Final Action letter pursuant to LAMC section 98.0312. Pet. ¶ Ex. I. On September 19, 2023, the hearing on the request for reconsideration took place. None of the Commissioners addressed any of the points in Petitioners’ counsel’s August 25, 2023 letter regarding the impossibility of measuring techniques. Pet. ¶29.

On September 21, 2023, the BBSC issued a Final Action letter denying Petitioners’ Request for Reconsideration. Pet. ¶29, Ex. J.

Petitioners seek (1) a writ of mandate under Code of Civil Procedure (“CCP”) section 1085, or in the alternative, CCP section 1094.5 (a) directing LADBS to set aside the building permits, (b) directing the BBSC to set aside its Final Action letter, and (c) ordering that all construction exceeding maximum envelope height be demolished. Petitioners also seek (a) temporary and preliminary injunctive relief prohibiting the issuance of additional building permits for the Project that violate the maximum envelope height, (b) a declaration that the Project is over-height and that the BBSC did not properly hear the appeal of the building permits because they should have been heard by the ZA and then the Planning Commission. Petitioners further seek attorney’s fees and costs.

On December 11, 2023, the court partially granted Petitioners ex parte application to authorize service of process on Beserker through the Secretary of State and/or by publication.

On December 12, 2023, the court found that the instant case is related to cases BS164400, BS173012, and 23STCP03550 within the meaning of California Rules of Court Rule 3.300(a). For good cause shown, said cases were assigned to Department 85 at Stanley Mosk Courthouse and all hearings in Department 82 were vacated.

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 (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon 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 §411.35 or (i) by §411.36. CCP §430.10. Accordingly, 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); 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, (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. Nevertheless, 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, (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).

In support their demurrer, the City and Tanager request the court take judicial notice of 26 exhibits as follows:

(A). a grant deed from Tanager to Berserker for the Property dated May 30, 2023;

(C). an unpublished appellate decision in Samatas v. City of Los Angeles, (2019) 2019 WL 5558069 (appeal from judgment in BS173012) “(Samatas II Appeal”);

(E). the petition for mandamus in Samatas v. City of Los Angeles, (“Samatas I”) Case No. BS164400, dated August 16, 2016 (without exhibits);

(F). the petition for mandamus in Samatas v. City of Los Angeles, (“Samatas II”) Case No. BS173012, dated March 29, 2018;

(G). the trial court decision on demurrer in Samatas II, dated November 8, 2018;

(H). a complaint for damages in Samatas v. 1410 Tanager, LLC et al., (“Hedge Case”) Case No. BC715897, dated August 3, 2018;

(I). the judgment pursuant to CCP section 437c in the Hedge Case, dated July 22, 2022;

(J). an appeal of building permits issued for the Property based on building height violations, dated May 4, 2018 (without exhibits);

(K). emails dated in or about August 2018 relating to the appeal of building permits in Ex. J;

(L). supplemental building permits issued by LADBS for the Property, dated October 1, 2018;

(M). a Request for Modification of Building Ordinances with an attached Appeal of Building Permits filed by Samatas with LADBS on January 8-9, 2019;

(N). LADBS written determinations on Case No. DBS-190020-DCP, dated April 3, 2019 and April 2, 2019;

(O). Samatas’ appeal to Planning from LADBS decision on Case No. DBS-190020-DCP, dated April 17, 2019;

(Q). an appeal of building permits filed by Samatas with LADBS on August 1, 2022 (without exhibits);

(R). LADBS’ written determination on Samatas’ appeal, dated August 24, 2023;

(S). City Council agenda packets for August 23, 25, 29, and 30, 2023, and for September 1, 5, 6, and 8, 2023;

(U). staff report for BSCS appeal from LADBS determination, dated August 1, 2023 (without exhibits);

(W). City Lobbying Firm Registration Forms (Form 31), dated October 11, 2022 and October 30, 2023 (Manatt, Phelps & Phillips, LLP);

(X). Docket from the U.S. Bankruptcy Court, Northern District of Illinois, Bankruptcy Petition 20-17355, with Photo ID of Debtor 1, James Samatas, accessed on December 28, 2023 (additional pages of docket removed);

Petitioners object to these requests for judicial notice on several grounds. As a threshold matter, Petitioners object to the City’s and Developer’s failure to cite the Petition’s allegations in the demurrer in favor of the exhibits subject to judicial notice. Obj. at 2. This is not a proper ground for objection. If an exhibit is subject to judicial notice, it may be relied upon in a demurrer. CCP §430.30(a); Blank v. Kirwan, supra, 39 Cal.3d at 318.

Petitioners also object that the City seeks to rely on the truth of the matters stated in judicially noticed exhibits. This is true to a point. The court may not take judicial notice of the truth of the findings in a court document. Sosinsky v. Grant, (1992) 6 Cal.App.4th 1548, 1551. Similarly, judicial notice of official acts of a government agency does not mean that the court may accept the truth of factual matters in the document since it is the existence of the contents, not their truth, which is subject to judicial notice. Cruz v. County of Los Angeles, (1985) 173 Cal.App.3d 1131, 1134. Nor may the court judicially notice the proper interpretation of a disputed document. Herrera, supra, 196 Cal.App.4^th at 1375.

However, a court may properly judicially notice both recorded documents and the facts arising from the legal effect of those documents. Fontenot v. Wells Fargo Bank, N.A., (“Fontenot”) (2011) 198 Cal.App.4th 256, 266 (facts that a party is an assignee or trustee in judicially noticed document is proper). See also JPMorgan Chase Bank, N.A., (2013) 214 Cal.App.4th 743, 755 (“…court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.”).

In sum, when a court judicially notices a court record or an agency document, it may judicially notice the operative facts which flow from the document’s existence. So, a court order or judgment can be judicially noticed for its existence and for the truth of the results reached, but not the truth of hearsay contained in the record. People v. Harbot, (1997) 61 Cal.App.4^th 123, 127. Additionally, statements of independent legal significance are not hearsay. Am-Cal Investment Co. v. Sharlyn Estates, Inc., (1967) 255 Cal.App.2d 526, 528. Petitioners fail to point to any specific exhibit for which the City’s demurrer improperly relies on the truth of its contents and this objection is overruled.

Petitioners further object that Exhibits W and X are irrelevant and therefore inadmissible. Exhibit W is a City Lobbying Firm Registration Form and Exhibit X is a docket from the U.S. Bankruptcy court. Obj. at 3. These exhibits are relevant to the demurrer’s standing arguments and Petitioners’ relevance objections are overruled.

Finally, Petitioners object that Exhibit K is not properly subject to judicial notice because it consists of City emails. Obj. at 3. These emails are not official City documents and the objection is sustained. As Petitioners fail to make any other specific objections, Exhibits A-Z are judicially noticed except Exhibit K. Evid. Code §§ 452(c), (d).

Respondent City and Real Party Tanager demur to the Petition on the grounds that (1) it is barred by the statute of limitations because Petitioners failed to serve Beserker within the 90-day limitations period of Government Code[1] section 65009(c), (2) the Petition is barred by Petitioners’ failure to timely challenge the City’s decision on Samatas’ appeal filed on January 9, 2019 and denied by Planning on June 3, 2019 (“First Height Appeal”), (3) Petitioner Samatas lacks standing and Petitioner Lintz failed to exhaust his administrative remedies, and (4) the Petition is barred by res judicata.

On February 2, 2024, counsel for (1) Respondent City (Deputy City Attorney Jennifer Tobkin); (2) Real Party Tanager (Attorney Daniel Freedman); and (3) Petitioners James Samatas and Steven Lintz (Attorneys Victor De La Cruz and Viral Methta) met via a zoom video conference to discuss the potential demurrer.[2] Freedman Decl. After conferring, the parties were not able to reach an agreement on the legal issues discussed. Id.

The City and Developer have satisfied their meet and confer obligation under CCP section 430.41.

Except as inapplicable, no action or proceeding shall be maintained to attack, review, set aside, void, or annul any decision on the matters listed in sections 65901 and 65903, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit “unless the action or proceeding is commenced and services is made on the legislative body within 90 days after the legislative body’s decision.” §65009(c)(1)(E). Section 65009(a)(3) provides in part that “[t]he purpose of this section is to provide certainty for property owners and local governments regarding decisions made pursuant to this division.”

The legislative intent for this provision “is to establish a short limitations period in order to give governmental zoning decisions certainty, permitting them to take effect quickly and giving property owners the necessary confidence to proceed with approved projects.” Wagner v. City of South Pasadena, (2000) 78 Cal.App.4th 943, 948-49. Strict compliance with the limitations period is required. Id., at 950; see §65009(e). This short limitation period serves the important legislative purpose of permitting the rapid resolution of legal challenges to local land use decisions and to provide “certainty” to local agencies and property owners alike. Honig v. San Francisco Planning Dept., (“Honig”) (2005) 127 Cal. App. 4th 520, 528. The intent is for permit decisions to take effect quickly and give property owners the confidence to proceed with approved projects. Wagner v. City of S. Pasadena, (2000) 78 Cal. App. 4th 943, 948–49.

To avoid keeping projects in “a state of perpetual limbo,” a challenger must file and serve the action within 90 days of the challenged decision. 1305 Ingraham, LLC v. City of Los Angeles, (“1305 Ingraham”) (2019) 32 Cal. App. 5th 1253, 1262-63. The term “legislative body” is interpreted broadly to include decisions by City zoning administrator, director, and/or boards of appeals. Id. at 1263-65. After expiration of the statute of limitations, “all persons are barred from any further action or proceeding”, and there are no exceptions. Travis v. County of Santa Cruz, (2004) 33 Cal. 4th 757, 768. A demurrer is properly sustained on statute of limitations grounds when the pleading discloses on its face, or on facts subject to judicial notice, that it is barred by the applicable statute of limitations. Honig v. San Francisco Planning Department, (“Honig”) (2005) 127 Cal.App.4^th 520, 524.

Even if a petition is timely filed, the petition must be dismissed if it is not timely served. Wagner v. City of South Pasadena, supra, 78 Cal. App. 4th at 948-51. The service deadline is important to achieving the statutory objectives because “[r]equiring an aggrieved citizen to file an action within 90 days but permitting him or her to withhold service for months or even years would effectively suspend the effective date of local land use and development decisions and leave such matters at the mercy of the complainant.” Honig, supra, 127 Cal. App. 4th at 526 (citation omitted).

Additionally, CCP section 389(a) provides for the compulsory joinder of necessary parties and CCP section 389(b) provides for the dismissal of the action if a necessary party is also indispensable and cannot be joined.[3] Failure to join an indispensable party is not a jurisdictional defect in the fundamental sense of jurisdiction. The court has the power to render a decision as to the parties before it in the absence of an indispensable party. It is for reasons of equity and convenience only that a court will not proceed with a case where it determines that an indispensable party is absent and cannot be joined. Save Our Bay, Inc. v. San Diego Unified Port District, (1996) 42 Cal.App.4th 686, 693. The controlling test for whether a necessary party is also indispensable under CCP section 389(b) is whether “the plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest of a third person not joined. Id. at 692.

The City and Developer argue that Berserker currently owns the Property, and the relief sought in this action would impair its ability to protect its interests. See RNJ, Ex. A. They contend that Berserker is an indispensable party that Petitioners were required to serve within the 90-day limitations period. The BBSC issued its Final Action Letter on August 24, 2023, and stamped it “Action by the [BBSC] on August 22, 2023.” Pet., ¶27. Thus, to be timely, any challenge to the decision must have been filed and served on all necessary parties by November 20, 2023. Berserker was served on December 12, 2023, 112 days after the BBSC’s August 24, 2023 decision. RJN Ex. T. Therefore, the lawsuit is time-barred because Petitioners failed to serve indispensable Real Party Berserker within the 90-day limitation period. Dem. at 16.

The City and Developer rely on Templeton Action Committee v. Cnty. of San Luis Obispo, (“Templeton”) (2014) 228 Cal. App. 4th 427, 431-32. In Templeton, the governing statute, section 66499.37, required that an action or proceeding to set aside the decision of an appeal board or legislative body concerning a subdivision shall not be maintained unless the action or proceeding is commenced, and service of summons effected, within 90 days after the date of decision. Id. at 429. The petitioner timely filed a petition and served the respondent agency, but failed to timely join a developer whose rights could have been affected by the action. Id. The court held that the developer was an indispensable party and ordered dismissal of the case for failure to serve an indispensable party within the 90-day statutory period. Id. See also, Sierra Club, Inc. v. Cal. Coastal Comm’n, (“Sierra Club”) (1979) 95 Cal. App. 3d 495, 499-505; County of Imperial v. Sup. Ct., (“County of Imperial”) (2007) 152 Cal. App. 4th 13, 40. Dem. at 15-16.

Petitioners do not dispute that Beserker is an indispensable party, and it is. See Beresford Neighborhood Assn. v. City of San Mateo, (1989) 207 Cal.App.3d 1180, 1188 (where plaintiff seeks to set aside developer’s permit, developer is indispensable party). Petitioners argue that the City and Developer gloss over the language in section 65009(c)(1), which expressly provides for dismissal “unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision…” (emphasis added). The statute refers to service on the legislative body only. Nowhere in the statute did the Legislature require service on a real party-in-interest in the 90-day period. The Legislature could have easily written the statute to include service on real parties and elected not to do so.

Petitioners note that a court first looks to the plain language of the statute in interpreting at statute. When the language is clear and unambiguous, there is no need for further construction. Wells Fargo Bank v. Goldzband, (1997) 53 Cal.App.4th 596, 614. To interpret section 65009(c)(1) any differently would be to ignore its express language and lead to unintended and perverse consequences. Any developer who obtained a permit that would result in illegal development could get away scot-free so long as the developer evaded service of process for 90 days. The Legislature did not create such an easy loophole. Opp. at 8.

Petitioners argue that Templeton, supra, 228 Cal.App.4th at 431-32 is factually inapposite because the governing statute in that case was section 66499.37, not section 65009(c)(1). Unlike section 65009(c)(1), section 66499.37 contains no express limitation for service on the “legislative body.” Additionally, both Sierra Club, supra, 95 Cal.App.3d at 495 (developer was indispensable party to permit challenge under the Coastal Act), and County of Imperial, supra, 152 Cal.App.4th at 13 (water districts were indispensable parties to county’s challenge to state water board’s approval of water transfer agreement), are distinguishable because the petitioner sought to amend the pleading to add the indispensable party after the statute of limitations had run and neither case involved a legal challenge governed by section 65009(c)(1). Petitioners add that a case cited by the City and Developer, Salmon Protection & Watershed Network v. County of Marin, (“SPAWN”) (2012) 205 Cal.App.4th 195, 208, actually undercuts their argument because the court stated the law clearly: “The 90-day time limit in Government Code section 65009, subdivision (c)(1)(A) requires service of a complaint only on “’the legislative body’….” (emphasis added). Opp. at 9.

Petitioners make a substantial argument about section 65009(c)(1)’s plain meaning. It expressly provides for dismissal unless service is made on the legislative body within 90 days after the legislative body’s decision and does not make any reference to real parties. This is distinct from section 66499.37, which concerns subdivisions and refers to service of summons within 90 days after the date of decision without reference to service on the legislative body. In interpreting a statute, the court first looks to the language of the statute, attempting to give effect to the usual, ordinary import of the language and seeking to avoid making any language mere surplusage. Brown v. Kelly Broadcasting Co., (1989) 48 Cal 3d 711, 724. “’The statute's words generally provide the most reliable indicator of legislative intent; if they are clear and unambiguous, ‘[t]here is no need for judicial construction and a court may not indulge in it. [Citation.]’” MCI Communications Services, Inc. v. California Dept. of Tax & Fee Administration, (“MCI”) (2018) 28 Cal. App. 5th 635, 643.

Petitioners’ argument ignores the fact that there must be some statute of limitations for naming and serving a real party developer that is indispensable to a permit challenge. The only viable limitations period besides the 90-day period in section 65009(c)(1) is the three-year period of CCP section 338(a) for action on liability created by statute. Yet, a three-year limitation period would be directly contrary to the purpose of section 65009. As the City and Developer argue (Reply at 3), the short limitations period in section 65009(a) was adopted by the Legislature to (i) “reduce delays and restraints upon expeditiously completing housing projects…” (ii) avoid a “chilling effect on the confidence with which property owners and local governments can proceed with projects…” and, (iii) provide certainty for property owners and local governments.” (emphases added). “The clear legislative intent of this statute is to establish a short limitations period in order to give governmental zoning decisions certainty, permitting them to take effect quickly and giving property owners the necessary confidence to proceed with approved projects.” Ching v. San Francisco Bd. of Permit Appeals, (1988) 60 Cal.App.4th 888, 893 (emphasis added).

Thus, the express intent of section 65009 is to bring cases to a speedy resolution for local agencies and property owners alike. The only interpretation of section 65009(c)(1) that effectuates this purpose is to require service on real parties in addition to “service…on the legislative body”. This interpretation does not rewrite or do violence to the plain language of section 65009(c)(1) because real parties are not respondents; they are interested parties who must be added under CCP section 389. It makes sense, therefore, that section 65009(c)(1) would not address them directly and that its 90-day period should apply to them as a matter of consequence.

Berserker is an indispensable party and Petitioners were required to serve it within the 90-day period of section 65009(c)(1).

Petitioners argue that, even if the City and Developer are correct that the 90-day period applies to service of the Petition on Berserker, they are wrong in stating that the statute of limitation deadline was November 20, 2023. The Petition does allege that the BBSC issued its denial letter on August 24, 2023. Pet., ¶27. But the City and Developer ignore the fact that the Petition and the August 24 letter itself, which set forth a reconsideration process pursuant to LAMC section 98.0312. Pet., ¶27, Ex. H, p. 130. Pursuant to that process, there was a reconsideration hearing and a new BBSC Final Action letter issued on September 21, 2023. See Pet., ¶¶ 28-29, Exs. I-J. Petitioners’ service of Berserker on December 12, 2023 occurred within 90 days of September 21, 2023.[4] See Opp. at 10.[5]

The City and Developer reply that Petitioners cite no law that a request for reconsideration would impact the finality of the BBSC’s August 24, 2023 decision. If Petitioners were seeking to challenge the BBSC’s denial of reconsideration, then perhaps Petitioners would have a point. But the BBSC’s refusal to grant reconsideration is not at issue. The case law does not support Petitioners’ view that a request for reconsideration somehow tolls the statute of limitations of an agency’s final decision. In fact, the court in Saint Francis Mem’l Hosp. v. State Dep’t of Pub. Health, (“Saint Francis”) (2021) 59 Cal.App.5th 965, 982, refused to recognize tolling in similar circumstances. (request for reconsideration did not constitute timely pursuit of an available remedy since reconsideration was unavailable; statute of limitations was therefore not tolled). Reply at 4-5.

In Saint Francis, a hospital petitioned for administrative mandamus from a fine imposed by the State Department of Health. 59 Cal.App.5th at 968. The petition was untimely under the 30-day limitations period of section 11523. Id. at 969. The hospital had served a request for reconsideration pursuant to section 11518.5, which was the wrong statute. Id. at 970. Section 11518.5 applies only when a party seeks to correct a mistake or clerical error, but the hospital sought to change the decision’s outcome. Id. The correct statute for seeking reconsideration was section 11521, which allows an agency to order reconsideration within 30 days after the decision is mailed to the respondent. Id. However, the power to reconsider under section 11521 lies only until the effective date of the decision. Id. at 976. When an agency makes a decision effective immediately, as the Department did, the 30-day period is eliminated for reconsideration and section 11523’s 30-day period for filing a mandamus petition begins. Id. at 970, 975.

Upon review, the California Supreme Court directed the Saint Francis appellate court to consider whether equitable tolling should apply to the hospital’s failed effort. Id. at 972-73. The appellate court did so and concluded that the hospital could not show the requisite element of reasonable and good faith conduct. While the hospital’s counsel acted in good faith (id. at 969), counsel’s conduct was not reasonable because, under either of sections 11518.5 and 11521, the power to reconsider ended on the effective date of the decision and the 30-day clock under section 11523 began. Id. at 973.

It is clear from Saint Francis that whether the 90-day period in section 65009(c)(1) was tolled while Petitioners sought reconsideration is dependent on the wording of the operative statute. Section 65009(c)(1) states that the action must be commenced “within 90 days after the legislative body’s decision.” It does not refer to a reconsideration process. Petitioners rely on LAMC section 98.0312, which provides that the BBSC may order reconsideration upon petition of any party, and the power to do so shall expire five days after the effective date of the decision. Petitioners timely filed their reconsideration request on August 25, the reconsideration hearing occurred on September 19, and the BBSC’s denial was issued on September 21, 2023. Pet., ¶¶ 28-29. This reconsideration process pursuant to ordinance should be construed in harmony with section 65009(c)(1) to extend the date of the legislative body’s decision to the date of its final decision. The BBSC’s decision was not final until September 21, 2023. Petitioners timely served Berserker.

The City and Developer argue that Samatas challenged the building permits on the same grounds as in this lawsuit in his May 4, 2018 letter to LADBS, and then in his First Height Appeal filed on January 9, 2019. RJN Exs. J, M. LADBS denied the First Height Appeal on April 3, 2019 when it found that the building permits were not issued in error and that: (i) the Project does not exceed the maximum allowable envelope height; (ii) does not exceed the maximum allowable overall height; (iii) the sloped roofs are not “ornamental structures;” (iv) the as-built structure does not exceed the maximum envelope height; and (v) the as-built construction does not exceed any maximum allowable overall building height. RJN Ex. N.

Samatas appealed that decision to Planning on April 17, 2019. RJN Ex. O. On June 3, 2022, Planning terminated the appeal, stating that “[b]ased on the appeal application and [its] contents [..], [Planning] is rejecting the application based on the Court of Appeal ruling in Samatas v. City of Los Angeles, No. B293811, 2019 WL 5558069 (Cal. Ct. App. Oct. 29, 2019)” (the “Termination Notice”). Pet., ¶15; RJN, Ex. P. The City’s action denying the First Height Appeal was final on June 3, 2022. Under section 65009(c)(1), Petitioners were required to challenge that decision within 90 days, or by August 31, 2022, and they did not do so. Dem. at 16.

The City and Developer anticipate that Petitioners may argue that this lawsuit is timely because Samatas re-filed the appeal on August 1, 2022 (“Second Height Appeal”), and that the limitation period runs from the BBSC’s decision on the Second Height Appeal as opposed to the Termination Notice. This argument is wrong. The August 1, 2023 staff report issued for the August 22, 2023 BBSC hearing on the Second Height Appeal stated that the BBSC would not consider any issues that were not within the BBSC’s jurisdiction and/or were previously denied. The staff report explained that, while Samatas “filed this as a zoning code appeal[,]… the primary issue […] pertains to the measurement of the as-built height… which is done by the LADBS Inspection Bureau….”, and all other issues “are not within the [BBSC’s] purview.” RJN Ex. U, p.5. Accordingly, the only issue heard by the BBSC in the Second Height Appeal concerned the Inspection Bureau’s confirmation of the Project’s as-built height. The issue of whether the building permits were issued in error or in violation of the LAMC—the subject matter of this action—was not before the BBSC. Dem. at 16-17.

Moreover, the Petition’s claim that the Termination Notice was issued “without prejudice… with an invitation to file a new appeal” does not save the Petition’s untimeliness. Pet., ¶15. The City’s appeal procedures unambiguously state that the BBSC has no authority to hear appeals on matters implicating the zoning code or other land use ordinances. LAMC §98.0403.1(b) (BBSC “shall have no authority to hear and determine appeals from orders… determinations, or actions…pertaining to enforcement of specific ordinances, regulations, or laws contained in Chapter I of this code and in other land use ordinances.”) (RJN Ex V). Rather, appeals concerning an interpretation of the zoning code are heard by the Director of Planning. LAMC 12.26.K. The Second Height Appeal concerned the enforcement and application of the zoning code and the Hillside Ordinance, issues which were not legally before the BBSC. See Pet., ¶19 (explaining that the August 1, 2022 appeal concerns maximum building envelope height required by the 2011 Hillside Ordinance). Those claims were required to be heard by the Director of Planning under LAMC section 12.26(K). Dem. at 17.

Thus, even if it is true that the Termination Notice permitted Petitioners to re-file the same appeal—and the City and Developer disagree — Petitioners failed to do so. This action is barred by Petitioners’ failure to exhaust their administrative remedies – i.e., refile the appeal with the Director of Planning. As Petitioners failed to file a lawsuit within 90 days of the issuance of the Termination Notice, and as the claims raised in this lawsuit are duplicative of the claims at issue in the First Height Appeal, this lawsuit is time-barred. Whether the Termination Notice was final or not, the action is barred. Dem. at 17-18.

Petitioners respond that the City and Developer ignore the express allegations in the Petition, which must be accepted as true. The Petition expressly alleges that LADBS’ position for the First Height Appeal was that it would not take up the issue until “after the building was completely constructed but before a certificate of occupancy was issued.” Pet., ¶15 (emphasis in original). The Petition makes clear that Petitioners did not want a three-year delay and sought resolution by LADBS earlier. But it was LABDS that improperly deferred the issue. Moreover, Planning’s June 3, 2022 Termination Notice expressly states: “In the event that you wish to pursue this matter in the future, it will be necessary for you to file a new application and pay the required fees. The present termination, however, will not adversely prejudice consideration of your new application….” (emphasis added). Opp. at 10-11.

That is precisely the process that Petitioners followed for the Second Height Appeal, filed on August 1, 2022 after the Project was completed. These allegations in the Petition cannot simply be ignored on demurrer. Given that Petitioners objected to the BBSC’s jurisdiction and were forced into the farcical BBSC process discussed in the Petition, the demurrer is quite rich in arguing that Petitioners cannot rely on the August 1, 2022 Second Height Appeal for statute of limitation purposes because such an appeal should be heard by the Director of Planning. See, e.g., Pet., ¶¶ 2, 25-26, 31, 70, Ex. G. Petitioners alerted the City to the fact that the Director of Planning had the appropriate jurisdiction, but the City ignored them to avoid hearing the merits of Petitioners’ appeal and insulate LABDS’ decisions. Id. Now, the City and Developer not only admit wrongdoing -- i.e., that the Director of Planning had the appropriate jurisdiction -- they rely on that wrongdoing to prevent Petitioners from a mandamus hearing on their claims. The City’s improper processing of the appeals cannot be a basis to bar the Petition. Opp. at 11.

The City and Developer reply that the Termination Notice’s proviso that “[i]n the event that you wish to pursue this matter in the future, it will be necessary for you to file a new application [and the] present termination [] will not adversely prejudice consideration of your new application….” does not save Petitioners’ case. This language at the bottom of the Termination Notice concerning the filing of a future appeal does not negate the clear language at the top stating that “[b]ased on the appeal application and contents presented within, the Department of City Planning is rejecting the application…based on the Court of Appeal ruling in Samatas v. City of Los Angeles, No. B293811, 2019 WL 5558069 (Cal. Ct. App. Oct. 29, 2019.” RJN Ex. P. In other words, the Senior City Planner, acting on behalf of the Director of Planning, determined that the First Height Appeal was barred by res judicata. If Samatas disagreed with this conclusion, he was required to file a timely lawsuit. Reply at 5.

Although Samatas contends that the Termination Notice “invited” him to file a new appeal, the issues rejected by the Termination Notice were not considered by the BBSC. See RJN Ex. U, p. 6 (BBSC staff report stating that Petitioner’s challenges to the building permits “were previously addressed…and will not be discussed here…[and] are not within the Board’s purview.”). The BBSC limited its consideration of the new appeal to the as-built height of the existing permitted structure—the same issue the City indicated it could not hear until the Project was completed. Thus, the City has been consistent in its responses to Petitioner: the First Height Appeal was rejected by the June 3, 2022 Termination Notice and the BBSC did not have authority to hear that issue as part of the Second Height Appeal. Reply at 6.

As pled in the Petition, and the parties agree, the Director of Planning had authority to address the Project height limits required by the Hillside Ordinance and the BBSC lacked authority to hear such appeals. See LAMC §98.0403.1(b) (RJN Ex. V); Pet., ¶¶ 13, 19. Planning issued the Termination Notice for the First Height Appeal June 3, 2022. RJN Ex. P. If Petitioners wished to seek judicial review of that decision, they were required by section 65009(c)(1) to do so within 90 days. They did not do so. Instead, Petitioner Samatas filed the Second Height Appeal on August 1, 2022. This appeal was presented to LADBS, which forwarded it to the BBSC, not the Director of Planning, over Petitioners’ objection. Pet., ¶¶ 23, 25. The BBSC staff report then expressly stated that the BBSC was addressing only the as-built height of the existing permitted structure.

Based on these facts, Petitioners timely sought review of the BBSC’s decision. That the BBSC limited its decision to consideration of the as-built height of the existing permitted structure does not affect the scope of Petitioners appeal, which more broadly sought review of the Project’s violation of the Hillside Ordinance’s maximum allowable envelope height. While Planning decided this issue in the Termination Notice, concluding that the First Height Appeal was barred by res judicata under the Samatas II Appeal, it did so without prejudice. The Termination Notice expressly states: “The present termination, however, will not adversely prejudice consideration of your new application….” (emphasis added). The Petition expressly alleges that this was an affirmance of LADBS’ position on the First Height Appeal that it would not take up the issue until “after the building was completely constructed but before a certificate of occupancy was issued.” Pet., ¶15 (emphasis in original). The Termination Notice implicitly adopts LADBS’ position. The Petition is untimely for judicial review of the Termination Notice, but that does not mean that it is untimely for consideration of a new appeal based on the same grounds after the Project was completed.[6] It is not.

Standing is a threshold issue necessary to maintain a cause of action, and the burden to allege and establish standing lies with the plaintiff. Mendoza v. JPMorgan Chase Bank, N.A., (“Mendoza”) (2016) 6 Cal.App.5th 802, 810. As a general rule, a party must be “beneficially interested” to seek a writ of mandate. Friends of Oceano Dunes, Inc. v. San Luis Obispo County Air Pollution Control Dist., (2015) 235 Cal.App.4th 957, 962 (citing CCP §1086). Likewise, to seek declaratory relief, a party must be an “interested person.” CCP §1060. An “interested person” means the same thing as a “beneficially interested” person in mandamus cases. Asimow, et al., Administrative Law (2018), Ch. 14, §14:6. The term “beneficially interested” has been generally interpreted to mean that one may obtain the writ only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large. SJJC Aviation Services, LLC v. City of San Jose, (“SJJC”) (2017) 12 Cal.App.5th 1043, 1053. The beneficial interest must be direct and substantial. Ibid. A petition has no beneficial interest if she will gain no direct benefit from the writ’s issuance and suffer no direct detriment if it is denied. Ibid.

The City and Developer correctly argue that Samatas does not have the requisite beneficial interest to pursue this mandamus action because he no longer lives next to the Property. Title records show that Samatas sold 1424 Tanager in May 2021. RJN Ex. D. He now resides in Oak Brook, Illinois. RJN Ex. X. (Samatas’ Illinois driver’s license). In 2022 and 2023, Samatas’ counsel filed lobbyist registrations with the City identifying Samatas’ address in Illinois. RJN Ex. W. Samatas signed the verification of the Petition in Illinois. Pet., p. 35. As a former neighbor of the Property, Samatas has no legal interest in the Project’s compliance with the Hillside Ordinance. Samatas was not prejudiced by the BBSC’s action on his appeal, which was filed after Samatas sold 1424 Tanager. Californians for Disability Rts. v. Mervyn’s, LLC, (2006) 39 Cal. 4th 223, 233 (standing must always exist until judgment is entered). Dem. at 18-19.

Petitioners respond that Samatas was negatively impacted in connection with his sale of the Property to Lintz due to the illegal Project. Samatas sold 1424 Tanager in or around April 2021 when appeals were pending and the June 3, 2022 Termination Notice had not yet been issued. RJN Exs. D, P. If necessary, the Petition may be amended to include such negative impacts, which establish the interest Samatas has in this action. Opp. at 12.

Samatas is incorrect. As a resident of Illinois without any ownership of property near the Project, Samatas cannot establish that anything the City did after he sold 1424 Tanager prejudicially affected his substantial rights, or that he will benefit from a mandamus ruling. A writ of mandate could not provide Samatas a higher sale price several years after the sale.

Petitioners also argue that the Petition expressly alleges that Lintz has provided Samatas with a Special/Limited Power of Attorney in connection with the claims that are the subject of this action, including the prosecution thereof.” Pet., ¶5. The Power of Attorney clearly states that Samatas has the authority to prosecute this lawsuit on behalf of the current owner of the Property, Lintz. Opp. at 11-12.

This allegation enables Samatas to prosecute Lintz’ claim, and it is undisputed that Lintz has standing. But the claim still belongs to Lintz; it does not confer standing on Samatas. Yet, Samatas purports to be a Petitioner. Pet., ¶5. The City and Developer correctly reply that California law does not give a party personal standing to assert rights or interests belonging solely to others. CCP §367 (action must be brought by or on behalf of the real party in interest); Jasmine Networks, Inc. v. Superior Court, (2009) 180 Cal.App.4th 980, 992. Reply at 6.

As a general rule, a court will not issue a writ of mandate unless a petitioner has first exhausted its available administrative remedies. See, e.g., Alta Loma School Dist. v. San Bernardino County Com. On School Dist. Reorganization, (1981) 124 Cal.App.3d 542, 554. Under this rule, an administrative remedy is exhausted only upon termination of all available, non-duplicative administrative review procedures. Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., (2005) 35 Cal.4th 1072, 1080.

The exhaustion doctrine has been described as “a jurisdictional prerequisite to resort to the courts.” Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 293. The exhaustion doctrine contemplates that the real issues in controversy be presented to the administrative body, which must be given the opportunity to apply its special expertise to correct any errors and reach a final decision, thereby saving the already overworked courts from intervening into an administrative dispute unless absolutely necessary. Farmers Ins. Exchange v. Superior Court, (1992) 2 Cal.4th377, 391.

The failure to allege exhaustion of administrative remedies or facts excusing the failure to exhaust renders the petition subject to demurrer for failure to state a cause of action. See, e.g., Stenocord Corp. v. City & County of San Francisco, (1970) 2 Cal.3d 984, 990. A mere allegation that petitioners have exhausted their administrative remedies has been held to be conclusory and insufficient to survive demurrer. Pan Pacific Property v. County of Santa Cruz, (1978) 81 Cal.App.3d 244, 251. On the other hand, such an allegation has also been held sufficient to survive demurrer. Wong v. Regents of University of California, (1971) 15 Cal.App.3d 823, 829. Therefore, the court has discretion in determining whether the allegation is adequate.

The exhaustion doctrine includes issue exhaustion as well as exhaustion of administrative remedies. The agency must be given the opportunity to reach a reasoned and final conclusion on each and every issue upon which it has jurisdiction to act before it is raised in a judicial forum. Hill RHF Housing Partners, L.P. v. City of Los Angeles, (“Hill”) (2021), 12 Cal.5th 458, 479 (citation omitted). “Exhaustion requires ‘a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.’” City of San Jose v. Operating Engineeers Local Union No. 3, (2010) 49 Cal.4^th 597, 609 (citations omitted). “The exhaustion doctrine contemplates that the real issues in controversy be presented to the administrative body, which must be given the opportunity to apply its special expertise to correct any errors and reach a final decision, thereby saving the already overworked courts from intervening into an administrative dispute unless absolutely necessary.” Farmers Ins. Exchange v. Superior Court, (1992) 2 Cal.4^th 377, 391. The exact issue raised in the lawsuit must have been presented to the administrative agency. Tahoe Vista Concerned Citizens v. County of Placer, (2000) 81 Cal.App.4^th 577, 594. Otherwise, a litigant could present narrow arguments or even omit them before the final administrative authority in hopes of obtaining a more favorable decision from a trial court. Id.

The City and Developer argue that Lintz has not exhausted his administrative remedies. He was never a party to the administrative appeals, never personally commented on Samatas’ appeals, and never paid an appeal fee. If Lintz was a party to an appeal, his counsel needed to report his involvement in its required lobbyist registration, which it did not do. See RJN Ex. W. Lintz’s name was merely referenced in an August 21, 2023 letter submitted by Petitioners’ counsel one day before the BBSC hearing, and again in an August 25, 2023 reconsideration request after the BBSC denied the appeal. Pet., ¶¶ 25, 28, ,Exs. G, I. Simply noting Lintz’s name in two letters does not make him a party to the appeal. Moreover, pursuant to the LAMC’s appeal procedures, a party to an appeal is not simply an interested person. See LAMC Sec. 98.0308(f) (RJN Ex. V) (party has rights of introducing exhibits, cross-examining witnesses, and representing himself or to be represented by anyone of his choice). Lintz was not a party to the appeal and cannot meet the exhaustion requirement by piggybacking onto Samatas’ appeal at the last minute. Dem. at 19-20.

Lintz cannot argue that he is excused from exhausting administrative remedies by granting Samatas a power of attorney. The City’s ordinances do not permit “secret” or “hidden” appellants. If Lintz was a party to the appeal—on his own or via representation by Samatas—Samatas’ counsel needed to report Lintz’s involvement in its required lobbyist registration. Samatas also needed to file an appeal on behalf of Lintz. Neither occurred. Dem. at 20.

Petitioners respond that the position of the City and Developer is demonstrably false. The Petition alleges that “Mr. Lintz joined Mr. Samatas’ appeal of the subject building permits and is a successor-in-interest to Mr. Samatas.” Pet., ¶5. Appeal letters to the BBSC expressly stated that the letters were on behalf of both Samatas and Lintz. Pet., Exs. G, I. The BBSC’s denials of the requests in those letters are directly at issue in this litigation. Pet., ¶¶ 23-29, 67-75.

“The essence of the exhaustion doctrine is the public agency’s opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review.” Citizens for Open Government v. City of Lodi, (“City of Lodi”) (2006) 144 Cal.App.4th 865, 874 (2006) (emphasis in original). That unquestionably happened. Case law makes clear that a petitioner has exhausted so long as the issues are presented to the final decision-making body—it does not matter that a petitioner did not appear before or present issues to the lower body. Browning-Ferris Indus. v. City Council, (“Browning-Ferris”) (1986) 181 Cal.App.3d 852, 859-60 (1986). Nor does a petitioner need to file a separate appeal document where another party has filed a similar appeal. Citizens for Open Government v. City of Lodi, supra, 144 Cal.App.4th at 878 (citizens group not barred from challenging approval of project and permit by its failure to appeal planning commission approval decision to city council, where another group did file appeal on similar grounds); Blue v. City of Los Angeles, (“Blue”) (2006) 137 Cal.App.4th 1131, 1141 n.8 (“An individual challenging a redevelopment plan need not have personally raised each issue at the administrative level, but may rely upon issues raised or objections raised by others, so long as the agency had the opportunity to respond.”). Opp. at 12-13.

Petitioners argue that none of the cases cited by the City and Developer stand for the proposition that, in order to exhaust his administrative remedies, Lintz must file an initial appeal and cannot join the appeal later. The City and Developer’s strange reliance on LAMC section 98.0308(f) adds little because it merely sets forth the rights of parties at City hearings and does not speak to exhaustion of administrative remedies. Opp. at 13.

The court agrees with the City and Developer that Petitioners’ reliance on City of Lodi and Browning-Ferris is ineffectual because they are CEQA cases involving relaxed standing requirement. Under Public Resources Code section 21177, a litigant need only raise an objection during the public comment period to challenge an agency’s CEQA action, and the litigant may rely on the objections of others in doing so. While Blue, supra, 137 Cal.App.4th at 1141 n.8, is not a CEQA case and states that an objector may rely on the objections of others, Petitioners point to no general rule in land use or City appeals that the objector need not file an appeal. Reply at 7.

Nonetheless, the Petition alleges that “Lintz joined [] Samatas’ appeal… and is a successor-in-interest to [] Samatas.” Pet., ¶5. The court must accept that as true unless contradicted by judicially noticed facts. The City and Developer reply that Lintz cannot simply jump into an existing appeal and that neither Samatas nor his legal counsel registered Lintz with the City’s ethics commission as a client that was being represented in connection with the BBSC appeal hearing. If Lintz was a party to the appeal, his legal counsel would have had to have registered with the City. Reply at 7, n.2.

This issue has not been adequately developed. The City and Developer fail to show that Lintz must file his own appeal, that Petitioners’ counsel is required to register as a lobbying firm and name its clients per City ordinance, and the legal consequences of not doing so. The reference to a party’s rights on appeal in LAMC section 98.0308(f) (RJN Ex. V) are insufficient.[7]

Lintz has standing and the demurrer is overruled on the issue of exhaustion of his failure to exhaust administrative remedies.

Res judicata, also known as claim preclusion, prevents re-litigation of the same cause of action in a second suit between the same parties or parties in privity with them. Mycogen Corp. v. Monsanto Co., (2002) 28 Cal.4th 888, 896. Res judicata serves to prevent inconsistent rulings, promote judicial economy by preventing repetitive litigation, and protect against vexatious litigation. Federation of Hillside and Canyon Associations v. City of Los Angeles, (“Federation”) (2004) 126 Cal.App.4th 1180, 1205. A judgment on the merits is res judicata and is conclusive on all issues that were raised or could have been raised in the prior proceeding. Id. at 1205. Res judicata applies if (1) the decision in the prior proceeding is final and on the merits, (2) the present proceeding is on the same cause of action as the prior proceeding, and (3) the parties in the present proceeding (or parties in privity with them) were parties to the prior proceeding. Id. at 1202. In order to avoid piecemeal litigation, a judgment is conclusive not only as to the issues actually decided, but those that might have been raised as well. Thibodeau v. Crum, (1992) 4 Cal.App.4th 749, 754; Sych v. Insurance Co. of North America, (1985) 173 Cal.App.3d 330.

The City and Developer point out that Samatas I sought the revocation of the Project’s building permits. RJN Ex. E. Samatas alleged that the Project was permitted to be over-sized in that the developer allegedly manipulated the site’s “natural grade” in the Project’s plans so that a larger house could be developed than otherwise would have been allowed. Ex. E, ¶¶ 1-7. Samatas specifically alleged that the Developer intentionally misrepresented the slope under the prior home in the Project’s topographical survey to “build a larger home than permitted under the LAMC (i.e., a “Slope Band Claim”). RJN Ex. A, ¶1. Samatas prevailed on the Slope Band Claim. Id. The City complied with the ensuing writ and filed its return on December 19, 2017, evidencing that a supplemental permit was issued and that the size of the Project was reduced. Id. No appeal was taken from the judgment, which is final. Id., p. 7. Dem. at 11.

On March 29, 2018, Samatas filed Samatas II. Id., p. 5. As in Samatas I, Samatas alleged that the same building permits violated the LAMC based on different legal theories. Id., pp. 5-6. Relying on allegedly “newly discovered” evidence, the petition alleged that the Developer evaded zoning requirements designed to limit the residential floor area” and that the height of the Project’s walls exceeded the LAMC limitations. RJN Ex. F., ¶2. Samatas II alleged four causes of action:(i) the Project’s basement walls were in fact retaining walls that were over-height; (ii) the Project’s grading exceeded applicable LAMC limitations; (iii) the Project once again incorrectly calculated the permitted Residential Floor Area (“RFA”); and (iv) the basement walls exceeded the height limitations above natural grade to qualify as basement walls. Id., ¶¶ 129-51. The petition prayed for the Project’s building permits to be revoked. Id. at Prayer, pp. 66-67. Dem. at 11-12.

The court sustained the City’s demurrer that Samatas II was barred by the doctrine of res judicata. RJN Ex. C, p. 6. The court found that all of the elements of res judicata had been met: (i) a final decision had been made on the merits in Samatas I; (ii) Samatas II was between the same parties or parties in privity; and (iii) the two cases involved the same cause of action. Id. Dem. at 12.

The Second District Court of Appeal upheld the dismissal in an unpublished decision filed on October 29, 2019, which confirmed the primary right at issue: Samatas “right to be free from City-issued building permits for the Project that do not comply with the City’s zoning laws so that the Project interferes with the quiet enjoyment of his property.” RJN Ex. C, p. 6. Dem. at 12.

The City and Developer argue that, just as in Samatas II, Petitioners are attempting to vindicate the same primary right at issue in Samatas I. Petitioners’ new legal theory is that LADBS permitted an over-height Project that exceeds the applicable zoning laws. Pet., ¶¶ 67-75. While the Petition contends that this legal theory was not discovered until May 2018, Samatas made the same argument in Samatas II, and the appellate court rejected the use of the “discovery rule” for purposes of the res judicata doctrine. RJN Ex. C, n. 5. Dem. at 22.

Moreover, this issue could have been raised in Samatas I. Petitioners’ Second Height Appeal to the BBSC arises from their claim that the Project’s original building permits relied on allegedly inaccurate topographical surveys. Pet., ¶¶ 1, 9; RJN Ex. J, p.7. This was the exact issue litigated in Samatas I. RJN Ex. C, Ex. E, p. 9. Samatas admitted in Samatas I that his experts scrutinized both the Project’s architectural plans, survey, and the site itself, before filing suit. RJN Ex. Z. Samatas knew during Samatas I that an error relating to the calculation of natural grade could also result in errors in the calculation of height, and yet he did not raise the issue. He (i) knew that the Project’s height was measured from natural grade, (ii) knew that the natural grade in the in the Project plans contained errors, and (iii) should have known that the Project was permitted over-height. Samatas could have raised this over-height claim in Samatas I but failed to do so. Dem. at 22-23.

The Petition argues that res judicata should not apply because the prior lawsuits did not address the height of the Project and a supplemental permit was issued in October 2018. Pet., ¶16. Neither argument holds water, and both were rejected in Samatas II. As explained in Colebrook v. CIT Bank, N.A., (“Colebrook”) (2021) 64 Cal. App. 5th 259, 263, “one injury gives rise to only one claim for relief” and “the primary right is simply the plaintiff’s right to be free from the particular injury suffered.” Id. The issue is not whether new facts have arisen, or a new legal theory is alleged, but whether a subsequent action seeks to “vindicate the same primary right” created by the same injury. Id. at 246. The primary right and injury at issue in Samatas I, Samatas II, and this action are identical, and it is of no significance whether concerns over the Project’s height were specifically raised in Samatas I. Dem. at 23.

The City and Developer argue that the fact that a supplemental permit was issued in 2018 does not change the result. Samatas similarly argued in Samatas II that the issuance of a supplemental permit, issued after Samatas I was filed, supported a new claim and cause of action. This court rejected this same argument, again focusing on the primary right. RJN, Ex. G, p. 14; Ex. C, p. 10. The court correctly noted that Samatas knew “about the grading… and was obligated to raise his claims concerning the original grading permit in Samatas I.” Id., p. 15. The same is true here. Samatas knew: (1) that height was measured from natural grade, and (2) the permits contained errors with respect to the measurement of natural grade. Res judicata does not permit Samatas to piecemeal his litigation. Dem. at 23.

As in Samatas II, Petitioners may attempt to rely on Allied Fire Protection v. Diede Constr., Inc., (“Allied Fire”) (2005) 127 Cal. App. 4th 150, 155, to argue that res judicata does not apply because Petitioners could not have raised the claims relating to the Project’s new sloped roofs—which were permitted in the supplemental permit—in Samatas I. This is incorrect. Allied Fire concerned a fraud that was committed by the defendant prior to the plaintiff’s first suit, but about which the plaintiff was unaware at the time. Id. at 153. The court found that these new facts resulted in a new claim (i.e., a different injury), and res judicata did not apply. Compare 5th & LA v. W. Waterproofing Co., (“5th & LA”) (2023) 87 Cal. App. 5th 781, 790, (changed conditions or new facts are not by themselves enough to avoid res judicata, and distinguishing Allied Fire “because it involved two different claims: one contractual, one for fraud.”). Samatas had his chance to vindicate this primary right in Samatas I, and Petitioners do not get another bite at the apple. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, (9th Cir. 2003) 322 F.3d 1064, 1077 (“The doctrine of res judicata is meant to protect parties against being harassed by repetitive actions.”). Dem. at 23-24.

Petitioners respond that the City and Developer ignore the factual allegations in the Petition and clear law that the Petition is not barred by res judicata. “The determination of whether a cause of action could have been brought is made as of the date the first complaint was filed; res judicata does not bar any claims that arise after that.” RJN Ex. C (Samatas II Appeal, supra, 2019 WL 5558069 at *7) (citing Allied Fire, supra, 127 Cal.App.4th at 155). Samatas I and Samatas II were filed on August 16, 2016 and March 29, 2018, respectively. Pet., ¶16. The October 1, 2018 supplemental permit that took the Project’s permitted height from 30 feet as contemplated in the original plans to the illegal 36 feet was issued years after Samatas I and over six months after Samatas II. The present action asserts claims relating to various issues having nothing to do with the City’s issuance of the original building permits. The claims are based on facts that arose after Samatas I and Samatas II were filed and do not relate to the 2015 issuance of the original building permits. Instead, they relate to the actual structure that was constructed. Pet., Ex. A. Res judicata is not carte blanche for the City or Developer to violate the law by deviating from permits and issuing new supplemental permits that illegally support that deviation. Opp. at 13-14.

Unlike Federation, supra, 126 Cal.App.4th at 1202, these issues could not have been actually litigated in the prior actions and do not implicate the same primary right. As the City and Developer concede, the primary right at issue in Samatas I and Samatas II related to LABDS’ issuance of the original building permits for the Project as they relate to the Project’s square footage, retaining walls, and slope band analysis. Pet., ¶16; RJN Ex. C. There is a drastic difference between challenging initial project approvals (Samatas I and Samatas II) versus challenging an illegal deviation from such project approvals during construction and issuing new approvals to justify the illegal construction. Opp. at 14.

The City and Developer are also wrong in contending that “Samatas knew during Samatas I that an error relating to the calculation of natural grade could also result in errors relating to the calculation of height.” That mischaracterizes the Petition, which alleges that the as-constructed and actual location of the Project was shifted at critical points in comparison to the Project’s approved height survey. Pet., ¶¶ 62, 65. Samatas could not have known in Samatas I that the Developer would move the Project in an effort to make it illegally higher, and that the City would allow it. Opp. at 15.

Finally, the October 2018 supplemental permit at issue in the Petition is drastically different from the supplemental grading permit at issue in the prior litigation. In Samatas II, the Court stated that “[b]ecause the supplemental grading permit made no change in the allegedly flawed analysis, Samatas[’] failure to challenge the analysis when originally made barred a subsequent challenge in Samatas II.” RJN, Ex. C, p. 10. In contrast, the original building permits at issue in the prior cases stated that the Project would be 30 feet high, which was in compliance with the law. Pet., ¶15. After construction commenced and the Project was plainly over-height, the City issued the October 2018 supplemental permit allowing the Project to be 36 feet high in violation of the zoning code. Id. In fact, the as-built Project is even higher than 36 feet. Unlike the supplemental permit at issue in the prior litigation, the October 2018 supplemental permit changed the City’s analysis in a way that Samatas could not have possibly known or anticipated in Samatas I or Samatas II. Opp. at 15.

The City and Developer reply that it is not true that Petitioners’ claims arose after the filing of Samatas I. It always has been Samatas’ allegation that the home was permitted to exceed the maximum allowable height. The Petition alleges that Samatas first had concerns about the Project height in May 2018 when “it became apparent [to him] that construction violated the 30-foot height limit.” Pet., ¶15. At that time, the Project plans were precisely the same as they were when Samatas filed Samatas I and Samatas II. The court sustained the City’s demurrer in Samatas II after a hearing in September 2018. RJN Ex. G. Samatas could have raised this issue in Samatas II or asked for a stay while the administrative appeal was pending, but he did not. Reply at 8.

The fact that a supplemental permit was issued does not change the result. Res judicata turns on whether or not the same primary right is at issue, and not whether or not new facts subsequently came to light. Colebrook, supra, 64 Cal. App. 5th at 264. In Samatas I, the primary right was “the right to be free from City-issued building permits for the Project that do not comply with the City’s zoning laws so that the Project interferes with the quiet enjoyment of his property.” Samatas v. City of Los Angeles, 2019 WL 5558069 *6 (RJN Ex. C). This right was fully litigated. Reply at 8-9.

Petitioners’ reliance on Allied Fire, supra, 127 Cal.App.4^th at 150 to suggest that the existence of any new facts avoids application of res judicata is wrong. In 5^th & LA, supra, 87 Cal. App. 5th at 781, a building owner filed a lawsuit against a roofing company alleging that the roof leaked and the roofing company breached express and implied warranties. Id. at 783. At trial, the company admitted to errors in its work, but the jury did not find the leaks to be caused by those errors. Id. at 785. Later, the owner sought to invoke an optional renewal of the roof’s warranty, and the company refused. Id. The owner sued again, now challenging the company’s refusal to honor the extension of the warranty, a new and different breach of contract. Id. The trial court granted summary judgment on the basis that the new lawsuit was barred by res judicata. Id. The building owner argued that the case was not res judicata because it “focused on the breach of the express 10 year warranty…” Id. Although this was a new fact/breach, the appellate court affirmed, finding that the case was still res judicata because the owner was again “suing on the same primary right: ‘for [the company] to honor its warranty for the work it did in 2012.’” Id. at 786. The court distinguished Allied Fire “because it involved two different claims: one contractual, one for fraud… [and] there is nothing like that here.” Id. at 790. Reply at 9.

Similarly, in Thibodeau v. Crum, (1992) 4 Cal.App.4th 749, a homeowner sued a general contractor for the deficient installation of a new driveway which exhibited problems with “broken chunks” and “radiating cracks.” An arbitrator awarded the homeowner damages to repair the driveway’s broken chunks. When the radiating cracks worsened, the homeowner attempted to sue the subcontractor. The court found the second action barred by res judicata, explaining that the “worsening of the cracks did not change the analysis” because it could “conceive of no logical reason why the arbitration should encompass the chunks but not the cracks.” Id. at 756. Reply at 10.

The City and Developer conclude that Petitioners make the same type of illogical distinction. The entire purpose of Samatas I was to challenge the size of the Project and its compliance with the Hillside Ordinance. The Petition seeks to re-litigate the same issue but tries to differentiate height from size without any logical basis. Accordingly, Petitioners are precluded from bringing new challenges to the building permits for the same reasons the owner in 5^th and LA and the homeowner in Thibodeau could not do so. The primary right is the same. Reply at 10.

Additionally, according to Petitioners’ opposition, the Project was not constructed consistent with the City-issued permits because the as-built height of the constructed house is greater than permitted and the house was built in a different location than shown in the approved plans. Pet., ¶¶ 1, 15-16, 44, 49-51, 67-68. To the extent Petitioners allege that the Project was constructed inconsistently with its permits, that is an enforcement complaint which is discretionary and not subject to a writ of mandate challenge. Reply at 10.

The Petition can be parsed into two claims based on Samatas’ Second Height Appeal: (a) the City improperly issued the October 2018 supplemental permit in violation of the Hillside Ordinance’s height restrictions and (b) the as-built Project is over-height and wrongly located in violation of the Hillside Ordinance. The Petition’s allegations for the latter issue include (a) LADBS’ approval of a height survey dated August 9, 2022 based on incorrect information in violation of the LAMC (Pet., ¶53, Ex. K), (b) construction that deviated from the 30-feet height limit set forth in the original plans and building permits (Pet., ¶¶ 1, 15-16, 44, 49-51, 67-68), and (c) the shifting of the as-built Project eastward at a critical location at the northern portion of the west roof so as to render the Approved Height Survey false (Pet., ¶¶ 62-65, Exs. O-Q).

The court agrees with the City and Developer (Reply at 10-11) that the City cannot be compelled to file an enforcement action for the as-built claims. Traditional mandamus is only available to compel the performance of an act where a statute or ordinance proscribes a “clear, present and usually ministerial duty. CCP §1085(a). It must be an act that the City is “required to perform in a prescribed manner without any exercise of judgment or opinion concerning the propriety of the act.” Cal. Assn. for Health Serv’s. at Home v. State Dept. of Health Serv’s, (2007) 148 Cal.App.4th 696, 707-08. The City has no mandatory duty to conduct building inspections or abate a nuisance for the as-built Project.

This fact does not explain, however, why the BBSC ruled that the Project as-built complies with the Hillside Ordinance’s maximum building envelope height. RJN Exs. R, U, p. 6-7. If BBSC erred in concluding that the Project meets height requirements, that decision can be set aside. While the City cannot be compelled to file an abatement action against Developer and Berserker, a ruling that the as-built Project does not comply with the law could be used by Lintz for his own nuisance action. Therefore, his mandamus claim is justiciable.

This leaves the supplemental permit. The court has ruled that Petitioners timely sought review of the BBSC’s decision for the Second Height Appeal. This judicial review includes the BBSC’s failure to consider Petitioner Samatas’ claims that the supplemental permit allows the Project to violate the Hillside Ordinance’s maximum allowable envelope height. As in Samatas I and Samatas II, the primary right is the right of a neighbor (Lintz) to be free from a City-issued building permit for the Project that does not comply with the City’s zoning laws so that the Project interferes with the quiet enjoyment of his property. The Petition alleges that, after construction commenced and the Project was plainly over-height, the City issued the October 2018 supplemental permit allowing the Project to be 36 feet high in violation of the zoning code. Pet., ¶15.

The court agrees with Petitioners that this claim is not barred by res judicata. The October 2018 supplemental permit allegedly allows an illegal 36-foot height. Unlike the supplemental grading permit in Samatas II, which made no change in the allegedly flawed analysis (RJN Ex. G, p. 17, n. 10), the October 2018 supplemental permit is alleged to have changed the permitted structure height of 30 feet to allow a 36-foot height in violation of the zoning code. Pet., ¶15. . The court must accept this allegation as true, and it presents a new claim against the City not barred by res judicata. The fact that it concerns the Project height and the prior cases concerned Project size, and therefore also height, does not affect this conclusion. The supplemental permit is a new City action not folded into the prior rulings on the Project’s permits.

The argument by the City and Developer that Samatas could have amended his complaint in Samatas II or sought a stay pending the outcome of the Second Height Appeal also does not affect its status as a new claim. “The determination of whether a cause of action could have been brought is made as of the date the first complaint was filed; res judicata does not bar any claims that arise after that.” RJN Ex. C (Samatas II Appeal, supra, 2019 WL 5558069 at *7) (citing Allied Fire, supra, 127 Cal.App.4th at 155).

The demurrer to the Petition is overruled. While it is not clear that Lintz exhausted his administrative remedies, the City and Developer have not met their burden on this issue. The City and Developer have 30 days to answer only.

[1] All further statutory references are to the Government Code unless otherwise stated.

[2] Respondent Berserker was not present for the meet-and-confer. Beserker is named in the Petition and has been served, but it has note appeared. Opp. at 10, n. 5.

[3] CCP section 389(b) provides: “If a person as described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.”

[4] Despite being served on December 12, 2023, Berserker has yet to appear in this action. At the December 12, 2023 Status Conference Re: Notice of Related Cases, the court asked counsel for Developer to reach out to Berserker, given that its residence could potentially be torn down as a result of this action. Mehta Decl., ¶3. At the February 2, 2024 meet and confer Zoom call on the demurrer, Developer’s counsel stated that they still have not been able to reach Berserker. Mehta Decl., ¶4.

[5] The City and Developer are correct that SPAWN, supra, 205 Cal.App.4th at 195 does not hold otherwise. There, a county adopted a general plan update and an associated EIR “involving no individual project proponent.” Id. at 205. Prior to the litigation, the county entered into a tolling agreement with a project objector. Id. at 199. When the objector later sued, third parties intervened, alleging that the objector’s petition was untimely on the ground that the tolling agreement was invalid because section 65009 sets “an absolute limit for filing and serving a complaint…” Id. at 207. The court found that the intervenors were not real parties-in-interest and that the legislative body “is the only necessary party to the suit.” Id. at 208. Unlike the intervenors in SPAWN, it is undisputed that Berserker is indispensable. Reply at 4.

[6] Petitioners also argue that the City and Developer ignore key allegations in the Petition occurring after the June 3, 2022 Termination Notice: (a) LADBS’ approval of a height survey dated August 9, 2022 based on incorrect information in violation of the LAMC (Pet., ¶53, Ex. K), (b) construction that deviated from the 30-feet height limit set forth in the original plans and building permits (Pet., ¶¶ 1, 15-16, 44, 49-51, 67-68), and (c) the shifting of the as-built Project eastward at a critical location at the northern portion of the west roof so as to render the Approved Height Survey false (Pet., ¶¶ 62-65, Exs. O-Q). Opp. at 11. The court agrees that, if these issues were raised in the Second Height Appeal, they were timely presented.

[7] Petitioners conclude that the collective standing/failure to exhaust arguments by the City and Developer suggest that, if a property is sold during the pendency of a building permit appeal, both the prior and current owners somehow will lack standing to pursue an illegal project. That cannot possibly be true. See Civil Code §3523 (“For every wrong there is a remedy.”). Opp. at 13. The City and Developer reply that it would be a perverse outcome for a litigious individual residing in Illinois to be able to seek mandamus against the City for no apparent reason other than spite. It is not hard to imagine a scenario where third parties can “jump into” administrative appeals they did not file, perhaps with the allure of an eventual award of attorney’s fees. Reply at 7-8. The court need not address these policy issues until the matter is more fully addressed.