Judge James C. Chalfant, Case Number: 23STCP04410, Date: 2024-05-28 Tentative Ruling

Respondent City of Los Angeles (“City”) demurs to the First Amended Petition (“FAP”) for writ of mandate filed by Petitioner Fix the City, Inc. (“FTC”). The City separately moves to strike portions of the FAP.

The court has read and considered the moving papers, oppositions, and replies, and renders the following tentative decision.

Petitioner FTC commenced this proceeding on December 5, 2023. On February 23, 2024, FTC filed the FAP, the operative pleading, which alleges ten causes of action for declaratory relief and/or mandamus. The verified FAP alleges in pertinent part as follows.

As a California non-profit public benefit corporation, FTC’s mission is to promote public safety, support adequate infrastructure, and hold City government accountable on land use issues. FAP, ¶36.

The Midvale Project (sometimes, “Project”) is a “low-barrier” interim housing project using 8 x 8 prefab plastic units to provide 33 sleeping cabins, on-site laundry facilities, storage bins and a storage module, pet area, office/case management conferencing space, dining area/community space, security fencing, additional “wrap-around” services, and two staff parking spaces, but without state-mandated “safe parking” for unhoused individuals. FAP, ¶8.

Low-barrier shelters are part of the City’s strategy to address homelessness. They are designed to be accessible to as many homeless individuals as possible, including the following: persons without identification or proof of homelessness; individuals under the influence of alcohol or drugs, provided they do not pose a danger to themselves or others; people with mental health issues who might not be able to comply with more stringent shelter rules; and homeless individuals with pets. FAP, p. 2, n.1.

The term “low-barrier navigation center” means a Housing First, low-barrier, service-enriched shelter that provides temporary living facilities while case managers connect individuals experiencing homelessness to income, public benefits, health services, shelter, and permanent housing. Government (“Govt.”) Code §65660(a); FAP, p. 2, n.1.

The Project site is Los Angeles Special Revenue Parking Fund (“SPRF”) City Parking Lot 707, encompassing two parcels. FAP, ¶124. The Project site is approximately 16,860 square feet and is two small parcels bisected by a public alley, with frontages along Pico Boulevard and Midvale Avenue. Parcel 2, north of the alley, is zoned R1 for single-family residential only. Parcel 2 abuts single-family homes to the east, west, and north. FAP, ¶10. Parcel 1, south of the alley, is zoned NMU(EC)-POD for mixed- and multi-family use. The Project site is the only off-street parking facility for the nearby businesses and provides the only Americans with Disability Act (“ADA”) parking for those businesses. FAP, ¶9.

On July 24, 2023, Council District 5 (“CD 5”) announced the Project after site selection had been completed, and after a vendor and provider had already been selected by the Councilmember. Unlike other homeless projects, the Project failed to abide by the required processes – namely, there had been no Project application, no prior City Council file, no City Council motion to initiate the Project, no City Administrative Office (“CAO”) site assessment using established criteria, and no Asset Management Assessment. FAP, ¶11.

On August 10, 2023, the Los Angeles Board of Transportation Commissioners (“Transportation Board”) held an informational session on the Project that did not provide the public with a staff report. The Transportation Board took no action at the informational session. FAP, ¶12.

On September 29, 2023, the City’s Department of Public Works, Bureau of Engineering (“BOE”), issued a CEQA exemption report. FAP, ¶13.

On September 29, 2023, the CAO issued a report recommending the use of the lot for modular interim housing and partial funding for the Project, but only for site preparation and development of modular units, not for operation expense or restoration of the parking lot. FAP, ¶14.

On October 4, 2023, the Los Angeles Housing and Homeless Commission (“Homeless Commission”) held a public hearing to approve Project funding for the purchase of the sleeping huts. There was no staff report from the City’s Housing or General Services Departments, or site suitability report from the CAO. FAP, ¶15.

On October 10, 2023, the Governor signed AB 785 into law, which replaced Public Resources (“Pub. Res.”) Code section 21080.27 (“section 21080.27”). The new section 21080.27 took effect on January 1, 2024. Even though the City was a co-sponsor of AB 785, the City failed to make the new required findings for AB 785 with respect to the Project. FAP, ¶16.

On October 12, 2023, the Transportation Board held a public hearing on the Project. The Transportation Board President continued the item to October 18 due to lack of information on the Project. Four days later, the Mayor fired the President, although she had just reappointed him a month earlier. FAP, ¶18.

On October 18, 2023, the Transportation Board held a public hearing on the Project and approved use of Lot 707 for the Project. The Transportation Board found the Project statutorily exempt under the California Environmental Quality Act (“CEQA”) as an action necessary to prevent or mitigate an emergency under Pub. Res. Code section 21080(b)(4) and CEQA Guidelines section 15269(c), as well as under Pub. Res. Code section 21080.27 (then AB 1179). No staff report was presented or distributed to those members of the public who attended the hearing. FAP, ¶20.

The Transportation Board report for October 18, 2023 was not presented publicly. Neither the actions taken by the Homeless Commission, nor the Transportation Board report, were presented to the City Council. The Homeless Commission report disclosed additional costs that were not included in the CAO partial funding report, including a loss of $530,000 in revenue over ten years for the Special Parking Revenue Fund, the surplus of which is transferred to the General Fund. As a result, the CAO’s report was incomplete and incorrect regarding impacts on the General Fund under City Financial Policy 32. FAP, ¶21.

Regarding the exemption claimed under Pub. Res. Code section 21080(b)(4), CEQA defines an emergency as “a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services. Pub. Res. Code §21060.3. “Emergencies” are defined as occurrences such as fire, flood, earthquake, landslide, riot, accident or sabotage. Id. This exemption only applies to a sudden, unexpected occurrence. FAP, ¶22.

Pursuant to section 21080.27, effective January 1, 2024, CEQA does not apply to projects shown to be “activities undertaken by the City of Los Angeles within the City of Los Angeles” that include the “issuance of an entitlement for, or the approval of the construction of, an affordable housing project, a low-barrier navigation center, a supportive housing project, or a transitional housing project for youth and young adults.” §21080.27(b)(1). Per the Legislative Digest: “The bill would require the lead agency to ensure that those projects meet certain labor requirements in order for the exemption to apply.” See also §21080.27(e). FAP, ¶23.

On October 20, 2023, the City Council approved the use of Lot 707 for a low-barrier interim housing project, partial funding for the Project, and found the Project statutorily exempt under CEQA as an action necessary to prevent or mitigate an emergency under Pub. Res. Code section 21080(b)(4) and CEQA Guidelines section 15269(c), and also under section 21080.27 (then AB 1179). FAP, ¶24.

On November 1, 2023, the issued a CEQA Notice of Exemption (“NOE”), citing the same provisions. FAP, ¶25.

There was no staff report, in writing or orally, responding to the objections raised by FTC and the public at the City Council’s Housing and Homelessness Committee meeting on October 4, 2023, the Transportation Board meetings of August 10, October 12, and October 18, 2023, or the City Council meeting on October 20, 2023. There was no Project application citing the authority to build the Project or the need for discretionary approvals. There was no discussion in any Project document addressing the violation of the Mayor’s Emergency Directive (“ED”) 1 by placing the Project on an R1 lot. FAP, ¶27.

Both the CAO and BOE issued reports on the Project on September 29, 2023. Those reports did not disclose the financial impacts of the Project on the General Fund due to loss of parking revenue for the Special Parking Revenue Fund, whose surplus is transferred to the General Fund, as well as the cost of site restoration. Site restoration is not an eligible use of homeless grant funds. FAP, ¶28. The General Services Department did not conduct a study to determine if the Project site was underutilized as part of asset management regulations or if the Project met the criteria for interim housing on City property per the CAO’s assessment protocol. FAP, ¶31.

With the Project vendor and provider approval occurring behind closed doors, FTC alleges on information and belief that the City Council has awarded at least one contract for the Project. FTC is informed and believes that the City Council has approved the appropriation for LifeArk module purchases for the Project. Based on references to the selection of LA Family Housing as the operator, including in the NOE, FTC is informed and believes that a contract has been signed or is imminent between the City and that entity. FAP, ¶29.

FTC and others objected to the Project during the limited process provided by the City, including submitting detailed letters and testifying at public hearings, thereby exhausting any administrative remedies. FAP, ¶30.

The first cause of action asserts that approval of the Midvale Project was inconsistent with the Exposition Special Plan, which requires an application filed with the City’s Department of Planning. FAP, ¶¶ 43-51.

The second cause of action asserts that the City wrongly relied on LAMC section 12.80 for approval of the Project because it is not a shelter as defined by that ordinance. FAP, ¶¶ 52-62.

The third cause of action seeks a declaration that the Project is a low barrier navigation center that cannot be approved under LAMC section 12.80. FAP, ¶¶ 63-66.

The fourth cause of action asserts that the Midvale Project approval must be set aside because ED1 precludes creation of a low barrier navigation center property at a location zoned as residential. FAP, ¶¶ 67-73.

The fifth cause of action asserts the Midvale Project approval violates requirements of ED3 and state law. FAP, ¶¶ 74-83.

The sixth cause of action asserts, on information and belief, that the City has entered into a LifeArk design/fabrication contract for Midvale Project dwelling units, as well as an operating agreement for the low barrier navigation center. The contracts are unlawful because they must be competitively bid and were awarded without such bidding. FAP, ¶¶ 74-83.

The seventh cause of action alleges that the Project fails to comply with City Fiscal Policy 32. FAP, ¶¶ 102-09.

The eighth cause of action alleges that the Project was not approved by the General Manager of the City’s Department of Recreation and Parks (“Recreation and Parks”) as required by Los Angeles Administrative Code (“LAAC”) section 8.59. FAP, ¶¶ 110-15.

The ninth cause of action alleges that the City failed to comply with its Asset Evaluation Framework for the Project. FAP, ¶¶ 116-22.

The tenth cause of action asserts that the City failed to properly comply with the CEQA before approving the Midvale Project. FAP, ¶¶123-50.

FTC prays for (1) a peremptory writ of mandamus requiring the City to comply with its mandatory and ministerial duties under state and local laws and set aside the Project approvals until it does so, (2) declaratory relief that the Project violates state and local laws and is invalid, (3) an injunction enjoining the City from development and construction of the Project. (4) mandamus under CEQA directing the City to (a) set aside and void the NOE, the Project, and all related approvals, (b) conduct a proper CEQA review, and (c) take action necessary to become in full compliance with CEQA, LAMC, and LAAC, and (5) preliminary and permanent injunctions preventing the City from issuing discretionary or ministerial entitlements for the Project.

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 the 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 of its demurrer and motion to strike, the City seeks judicial notice of the following 28 exhibits authenticated by declaration:

Exhibits 1 and 2 are the petition and first amended petition in Fix the City, Inc. v. City of Los Angeles, (“FTC 1”) LASC Case No. 23STCP03519 pending in Department 82.

Exhibits 3 through 6 are, respectively, the City Council’s October 20, 2023 approval of the Project, an October 4, 2023 report from the Homelessness Committee recommending that the City Council adopt a BOE report, and a September 29, 2023 BOE report recommending that the Project is exempt under CEQA.

Exhibits 7 and 8 are the minutes of the October 18, 2023 Transportation Board public meeting and a report to the Transportation Board also dated October 18, 2023.

Exhibit 9 is an October 2, 2023, letter from FTC to Transportation Board concerning the Project.

Exhibits 10 and 11 are a certified copy of the NOE for the Project and the State Office of Planning and Research record of the NOE’s posting.

Exhibits 12 to 15 are the City Council’s January 17, 2020 action approving a report relative to revisions of the City’s Financial Policies, a December 9, 2019 report from the City Council’s Budget and Finance Committee recommending approval of the revisions, and pages from a CAO report recommending revisions to the same Financial Policies.

Exhibit 16 is a joint powers agreement between the City and County establishing the Los Angeles Housing Services Authority (“LAHSA”).

Exhibits 17 to 19 are 2022-2023 LAHS program standards, Crisis Housing Program Scope of Required Services, and B7 Bridge Housing Scope of Required Services, all of which were incorporated by reference into the City Council’s approval of the Project.

Exhibit 20 is an agenda and notice of the February 16, 2024, public meeting of LAHSA’s Programs and Contracts Committee.

Exhibit 21 is a printout of the 2024 Midvale Tiny Home Village Program RFP webpage maintained by LAHSA.

Exhibit 23 is the City Council Official Action adopting its Asset Evaluation Framework, and the components of that action.

Exhibit 24 is a court reporter’s transcript from the February 15, 2023 trial setting conference in this case.

Exhibit 28 is Health and Safety (“H&S”) Code section 50216, effective at the time the Legislature enacted the Round 1 funding for its Homeless Housing, Assistance, and Prevention (“HHAP”) program.

Exhibit 29 is legislative history for section 21080.27, effective January 1, 2024.

FTC objects only to the characterizations of Exhibits 7 through 9 and the fact that Exhibit 9 has not been posted to the City Council file for the Project, and the truth of the contents of Exhibits 20-22. (Based on its objection, FTC apparently believes that Exhibit 9 should be part of the administrative record in this case.)

The court will not judicially notice the City’s characterizations of exhibits, only the exhibits themselves. Additionally, 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 notice. Cruz v. County of Los Angeles, (1985) 173 Cal.App.3d 1131, 1134. However, the court may judicially notice the operative facts which flow from the document’s existence. Fontenot v. Wells Fargo Bank, N.A., (“Fontenot”) (2011) 198 Cal.App.4th 256, 266. 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.”). Finally, statements in a document that are of independent legal significance are not hearsay. Am-Cal Investment Co. v. Sharlyn Estates, Inc., (1967) 255 Cal.App.2d 526, 528.

With this in mind, Exhibits 1-23 and 26-29 are judicially noticed. Evid. Code §452(b), (c), (d). There is no need to judicially notice Exhibits 24 and 25. A court can always review a transcript or order in the case before it.

FTC requests judicial notice of the following six documents. Exhibits 1-4 are LAMC sections 11.01, 18.01, 4.43, and 64.00. Exhibit 5 is LAAC section 8.59, and Exhibit 6 is a May 23, 2023 City Councilmember motion.

The City objects to Exhibit 6 as unauthenticated. The objection is sustained. Exhibits 1-4 are judicially noticed. Evid. Code §452(b).

In support of its reply, the City seeks judicial notice of the following documents.

Exhibit 33 is the March 6, 2024 agenda for the Department of Public Works for the receipt of bids for the Project.

Exhibit 34 is the March 6, 2024 minutes from the Department of Public Works meeting.

FTC objects to judicial notice of Exhibits 30-34 as (a) improper new evidence on reply concerning the competitive bidding issues and (b) evidence not part of the administrative record and barred by Western States Petroleum Assn. v. Superior Court, (1995) 9 Cal.4^th 559, 571. In response to the latter objection, the City argues that these records are admissible as post-determination Project information. Perhaps so, but the fact remains that they are not part of the administrative record now. The request to judicially notice Exhibits 30-34 is denied. Exhibit 29 is not subject to judicial notice and is denied.

FTC objects to Exhibits 35-37 as irrelevant. The objection is overruled and Exhibits 35-37 are judicially noticed. Evid. Code §452(b).

On December 12, 2022, Mayor Karen Bass declared a Local Homeless Emergency under LAAC section 8.27 regarding individuals experiencing homelessness. City RJN Ex. 2 (FTC 1 FAP, ¶1). As a result of this and subsequent emergency declarations, permits for 100% affordable housing became exempt from discretionary review and the usual procedure of public hearings and rights to appeal. FTC 1 FAP, ¶66.

On December 16, 2022, the Mayor issued ED1 (“Expedition of Permits and Clearances for Temporary Shelters and Affordable Housing Types”) pursuant to LAAC section 8.29. FTC 1 FAP, ¶42, Ex 2.

On December 21, 2022, the Mayor issued ED2 (“Inside Safe Initiative”), which cited to LAAC section 8.29 and 8.27 declarations. FTC 1 FAP, ¶44.

On February 10, 2023, the Mayor issued ED3 (“Emergency Use of Viable City-Owned Property”) pursuant to LAAC section 8.29. FTC 1, ¶46.

On June 12, 2023, the Mayor reissued ED1, maintaining its original title but adding “in no instance shall the project be located in a single family or more restrictive zone.” FTC 1 FAP, ¶47.

On June 27, 2023, the City Council adopted a new ordinance, LAAC section 8.33 (“Local Housing and/or Homelessness Emergency”), effective on or about July 5, 2023. Id. Two days later, on July 7, 2023, the Mayor declared a new emergency under the recently passed LAAC section 8.33. Id. LAAC was adopted to vest the Mayor with additional authority to address Los Angeles’ chronic homelessness conditions, as well as housing production within the City. FTC 1 FAC, ¶4.

Although Govt. Code section 8630 sets forth requirements for local emergency declarations, including regular and recurring ratifications to ensure the emergency authority is not misused, LAAC 8.33 only requires that a resolution ratifying the emergency be presented to the City Council. FTC 1 FAP, ¶9. Similarly, LAAC section 8.33 exempts qualifying contracts from the competitive bidding requirements maintained by Public Contracts Code Section 20162. FTC 1 FAP, ¶4.

On January 2, 2024, FTC filed FTC 1, which was assigned to the Honorable Curtis Kin in Department 82.[1] FTC prayed for mandamus and declaratory relief requiring the City to set aside LAAC section 8.33, the Mayor’s July 7, 2023 Declaration issued under LAAC section 8.33, ED 1, 2, 3, Guidelines, DWP Project Powerhouse, ED 6, the Housing and Homelessness Emergency Action Plan and any other rules or regulations promulgated by any City agency or department pursuant to the 8.33 Declaration. Ex. 2, p. 51.

The City demurs to the FAP, contending that (a) causes of action seven to ten fail to state a cause of action and (b) the entire FAP should be abated with the exception of the claims to which its demurrer is sustained.

On February 28, 2024, the City e-mailed a meet and confer letter to FTC’s counsel. Mahlowitz Decl., ¶2. The parties’ counsel had a meet and confer conversation on March 5, 2024 and did not resolve the issues raised by the City’s meet and confer letter other than the FAP’s inaccurate citation to Govt. Code section 8698(c), to which FTC subsequently filed an errata. Id.

The City has complied with the meet and confer requirements of CCP section 430.31(a).

The tenth cause of action seeks declarator relief and mandamus for a violation of CEQA. FAP, ¶¶ 125-50.

The Project site is City SPRF Parking Lot 707, encompassing two parcels. FAP, ¶124. Both parcels are used as a City-owned parking lot, Lot 707, which provides critical customer parking and ADA parking to small businesses nearby. FAP, ¶125. The parcel north of the alley abuts single-family homes on its eastern, western, and northern boundaries. The parcel south of the alley has commercial uses on its eastern and western boundaries and Pico Boulevard on its southern boundary. FAP, ¶126.

The Project would construct and operate a low-barrier navigation center with 33 sleeping units, two of which would be ADA accessible. FAP, ¶127. The Project would result in an intensive use of the single-family-zoned site by providing 24-hour services such as emergency shelter, hygiene, storage, food services and case management. Project operations would include approximately six to eight employees scheduled in shifts throughout the day, with site security provided on a 24/7 basis or per a security plan consistent with LAHSA standards. FAP, ¶128.

According to the NOE, a third-party service provider would operate the Project and it is anticipated that a ten-year lease or similar operating may be executed in the future between the City, a service provider, the County, and/or LAHSA. The Project would be operated under LAHSA’s program requirements for crisis and bridge shelters. FAP, ¶129.

The two statutory CEQA exemptions cited in the NOE are Pub. Res. Code section 21080(b)(4), which provides that the Act does apply to “specific actions necessary to prevent or mitigate an emergency,” and section 21080.27, which pertains only to the City’s activities in furtherance of emergency shelters and support housing. FAP, ¶132. Before invoking a statutory exemption, the City needed substantial evidence showing it had met all elements of the exemption. This it failed to do. Without a project application, it is infeasible to conclude that the Project is exempt. FAP, ¶133.[2]

Under section 21080.27, CEQA does not apply to projects that are shown to be “activities undertaken by the City of Los Angeles within the City of Los Angeles” that include the “issuance of an entitlement for, or the approval of the construction of, an affordable housing project, a low-barrier navigation center, a supportive housing project, or a transitional housing project for youth and young adults.” §21080.27(b)(1). FAP, ¶143.

The statutory exemption does not apply unless the terms of section 21080.27(e) have been met. Subdivision (e)(1)(A) provides: “For…[a] low-barrier navigation center…that is not in its entirety a public work for purposes of Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the Labor Code, this section applies only if the project sponsor certifies to the lead agency that all of the following [labor and wages requirements] will be met for any construction or rehabilitation work”. FAP, ¶144.

The Project is not entirely a public work. FTC is informed and believes, and based thereon alleges, that neither the operation of the shelter nor dismantlement of the Project and restoration of the parking lot will be a public work and not a valid use of HHAP program funding. Therefore, the labor and wages requirements of section 21080.27(e) apply. FAP, ¶145.

The City did not make any findings that the labor and wages requirements of section 21080.27(e) will be met. Despite knowing about AB 785, the City made findings only applicable to AB 1197, the former version of section 21080.27. FAP, ¶146. The record does not contain substantial evidence for the application of the two statutory exemptions from CEQA. FAP, ¶148.

The construction of a CEQA statutory exemption is a matter of statutory interpretation which the court reviews de novo. North Coast Rivers, supra, 227 Cal.App.4^th at 851. An agency’s finding that a statutory exemption applies to a project is reviewed for substantial evidence. Concerned Dublin Citizens v. City of Dublin, (2013) 214 Cal.App.4th 1301, 1311. The court’s substantial evidence evaluation concerning a statutory exemption considers “whether the administrative record contains relevant information that a reasonable mind might accept as sufficient to support the conclusion reached.” North Coast Rivers, supra, 227 Cal.App.4th at 851. “All conflicts in the evidence are resolved in support of the agency’s action and [courts] indulge all reasonable inferences to support the agency’s findings, if possible.” Id.

A project undertaken by the City of paid for in part with public funds which is “[t]he issuance of an entitlement for, or the approval of the construction of . . . a low barrier navigation center” is exempt from CEQA. §21080.27(b)(1).

In turn, a “low barrier navigation center” is defined in Govt. Code section 65660(a):

“’Low Barrier Navigation Center’ means a Housing First, low-barrier, service-enriched shelter focused on moving people into permanent housing that provides temporary living facilities while case managers connect individuals experiencing homelessness to income, public benefits, health services, shelter, and housing. “Low Barrier” means best practices to reduce barriers to entry, and may include, but is not limited to, the following: (1) The presence of partners if it is not a population-specific site, such as for survivors of domestic violence or sexual assault, women, or youth, (2) Pets, (3) The storage of possessions, and (4) Privacy, such as partitions around beds in a dormitory setting or in larger rooms containing more than two beds, or private rooms.”

“(i) All construction and rehabilitation workers employed in the execution of the project will be paid at least the general prevailing rate of per diem wages for the type of work and geographic area….

(ii) The project sponsor ensures that the prevailing wage requirement is included in all contracts for the performance of the work for those portions of the project that are not a public work.

(iii) All contractors and subcontractors for those portions of the project that are not a public work comply with both of the following:

(I) Pay to all construction and rehabilitation workers employed in the execution of the work at least the general prevailing rate of per diem wages….

(II) Maintain and verify payroll records pursuant to Section 1776 of the Labor Code and make those records available for inspection and copying as provided in that section. This subclause does not apply if all contractors and subcontractors performing work on the project are subject to a project labor agreement that requires the payment of prevailing wages to all construction workers employed in the execution of the project and provides for enforcement of that obligation through an arbitration procedure.” §21080.27(e)(1)(A).

Labor Code section 1720 defines “public works” and “paid for in whole or in part out of public funds.” Labor Code section 1720(a) states in relevant part:

(1) Construction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds….For purposes of this paragraph, “construction” includes work performed during the design, site assessment, feasibility study, and other preconstruction phases of construction, including, but not limited to, inspection and land surveying work, regardless of whether any further construction work is conducted, and work performed during the postconstruction phases of construction, including, but not limited to, all cleanup work at the jobsite. For purposes of this paragraph, “installation” includes, but is not limited to, the assembly and disassembly of freestanding and affixed modular office systems….” (emphasis added).

“For purposes of this section, “paid for in whole or in part out of public funds” means all of the following: (1) The payment of money or the equivalent of money by the state or political subdivision directly to or on behalf of the public works contractor, subcontractor, or developer….”

If the City determines an activity is not subject to CEQA pursuant to section 21080.27(b), it must file a NOE with the County for a minimum of 30 days as well as with OPR. §21080.27(f).

The City relied on section 21080.27’s statutory exemption to approve the Midvale Project. City RJN Ex. 3 (City Council approval); City RJN Ex. 5 (BOE report). The City argues that the record before the City Council contains substantial evidence showing the Project is statutorily exempt from CEQA pursuant to section 21080.27. Dem. at 8-9.

The Midvale Project is a low barrier navigation center. The City’s approval documents require the Project to provide temporary housing of generally no more than 90 days and case managers to assist residents to locate permanent housing. RJN Ex. 5, pp.152-53 (BOE report, NOE attachment). The Project reduces all unnecessary barriers to entry and partners of residents may be present, pets are allowed, personal possessions storage areas are provided, and privacy is ensured because each resident has a separate dwelling unit with an ensuite bathroom. Id., p. 155. Dem. at 11.

The Midvale Project meets the definition of a navigation center for which Round 1 HHAP funds may be used. The Project is paid for entirely with public money. The City Council’s approval states the Project budget as $4,597,353, entirely comprised of money from the City’s General Fund and HHAP Round 1 funds. City RJN Ex. 5, p. 159 (NOE attachment); City RJN Ex. 6, p. 170 (CAO report). Contrary to the FAP’s assertion (¶145), the Project’s HHAP funding is authorized by law. The Legislature has enacted different statutes establishing five rounds of HHAP funding, with Round 1 occurring in 2019. H&S Code §§ 50217 (Round 1); H&S Code §§ 50216-50220.8, 50232. The law governing HHAP Round 1 funds states that the money may be used for “operating subsidies in new…navigation centers” and “[n]ew navigation centers and emergency shelters based on demonstrated need.” H&S Code §50219(c)(2), (8). The City Council expressly identified HHAP Round 1 money to fund some Project needs, including operations and construction. City RJN Ex. 6, pp. 168-70 (CAO report). Dem. at 11.[3]

The FAP wrongly asserts, on information and belief, that the Midvale Project is not a public work. FAP, ¶145. Labor Code section 1720 provides the definition of “public works” for section 201080.27(e). FTC’s contention (FAP, ¶145) that removal of the Project’s modular platform and units from the site at the end of the Project is not encompassed within this definition misreads Labor Code section 1720. The Project was designed to be installed atop a removable platform and taken away in ten years, and that removal is a component of the Project. See RJN Ex. 8, pp. 179-80, 189 (Transportation Board report and attachment E (project illustrations)). Labor Code section 1720(a) defines “public works” to include “construction” and “demolition” work if paid for in whole or in part with public funds, which is the case here. The Project is entirely a public work. Dem. at 12.

Moreover, the FAP’s allegations concerning Project funding sources presented on information in belief is insufficient to create a factual dispute defeating demurrer. A pleading allegation made on information and belief is defective unless the source of the belief is also alleged. Doe v. City of Los Angeles, (2007) 42 Cal.4th 531, 550; Gomes v. Countrywide Home Loans, Inc., (2011) 192 Cal.App.4th 1149, 1158–59. FTC’s unattributed belief that private funds will be used to pay for the Project does not create a disputed question of fact. Dem. at 12.

The City filed all NOEs required by section 21080.27 by filing an NOE with the County Recorder and OPR stating that the City has determined the Midvale Project is statutorily exempt from CEQA pursuant to section 21080.27. City RJN Exs. 9-10. As such, substantial evidence demonstrates the Midvale Project is exempt from CEQA. Dem. at 12-13.[4]

FTC responds that the NOE and accompanying documents do not present evidence of the certification of the wage and labor requirements for Midvale. See City’s RJN Exs. 5, 6. The City argues it was not required to do so because Midvale is “in its entirety a public work.” There is no such evidence presented in the demurrer and the legal argument fails. Opp. at 17.

The definition of “public works” in Labor Code section 1720(a)(1) that speaks of construction paid “in whole or in part” by public funds cannot change section 21080.27(e)’s requirement that a project “that is not in its entirety a public work” must meet wage and labor requirements to be exempt from CEQA. Labor Code section 1720 does not state that a project funded in part by public funds is in its entirety a public work; it merely defines “public works” generally. The plain meaning of section 21080.27(e)’s phrase “in its entirety a public work” means that the project is fully funded by public funds. That is not the case for the Midvale Project, or in any event, it cannot yet be determined because the City failed to disclose the costs to be incurred for Project operations and eventual site restoration. The court “must avoid a statutory ‘“construction making some words surplusage”’, “and every word should be given some significance, leaving no part useless or devoid of meaning.” K.R. v. Superior Court (2023) 89 Cal.App.5th 1193, 1206 (citations omitted). To read Labor Code section 1720 as altering the “entirety” requirement of section 21080.27 would render the words “that is not in its entirety a public work” meaningless. Opp. at 17.

A well-established rule of statutory construction is that a specific statute controls over a general statute covering the same subject. “Generally, it can be presumed that when the Legislature has enacted a specific statute to deal with a particular matter, it would intend the specific statute to control over more general provisions of law that might otherwise apply.” Thai v. Richmond City Center, L.P., (2022) 86 Cal.App.5th 282, 290 (citation omitted). Labor Code section 1700 generally defines public works, while section 21080.27 provides specific requirements for invoking the CEQA exemption. Had the Legislature wanted partially publicly funded projects to come within the CEQA exemption, it could have said so. Another rule of construction is that a court should not insert language that has been omitted or omit language which has been inserted. CCP §1858. The City seeks to add words to section 21080.27 that the Legislature chose not to use. Opp. at 1-18.

FTC argues that the question then is whether the Midvale Project is in its entirety a public work because it is fully funded with public funds? The answer is “No”. The City claims that its evidence shows the Project is fully funded with public funds, citing City RJN Exhibits 5 and 6. Those exhibits show funding from HHAP and the General Fund. See City RJN Ex. 6, p. 170. However, the FAP alleges that the CAO fiscal report, dated September 29, 2023, states: ‘The recommendations in this report will be funded with the City’s General Fund previously approved for homelessness interventions and the HHAP Round 1 funds….Funding for operations of the site will be programmed in a future funding report.’” FAP ¶103; City RJN Ex. 6, p. 171 (emphasis added). Opp. at 18.

There is no evidence that the Project operations and removal of the Midvale Project fixtures are publicly funded. As alleged in the FAP, the Project includes restoration of the Midvale property in ten years with CD 5 having financial responsibility to do so. FAP ¶¶ 104-06. But the Project provides no funding for that restoration. The funding cannot come from HHAP. H&S Code section 50219(c) provides that “a recipient of a round 1 [HHAP] program allocation shall expend funds on evidence-based solutions that address and prevent homelessness among eligible populations including any of the following [list]….” The list does not include property site restoration. FAP, ¶145. Opp. at 18.[5]

FTC concludes that there is no substantial evidence the Midvale Project is fully funded by public funds and therefore it is not “in its entirety a public work”. Since the City did not make any of the required findings that the labor and wages requirements of section 21080.27(e) will be met (FAP, ¶146), the Project does not qualify for the section 21080.27 CEQA exemption and the demurrer to the tenth cause of action should be overruled. Opp. at 19.

In construing a legislative enactment, a court must ascertain the intent of the legislative body which enacted it to effectuate the purpose of the law. Brown v. Kelly Broadcasting Co., (“Brown”) (1989) 48 Cal.3d 711, 724; Orange County Employees Assn. v. County of Orange, (“Orange County”) (1991) 234 Cal.App.3d 833, 841. 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, supra, 48 Cal 3d at 724. Significance, if possible, is attributed to every word, phrase, sentence and part of an act in pursuance of the legislative purpose. Orange County, supra, 234 Cal.App.3d at 841. The statute’s language must be harmonized with provisions relating to the same subject matter to the extent possible. Id. “‘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.

Section 21080.27 subdivisions (b) through (d) establish the types of actions exempt from CEQA if taken by the City, County, or a list of County public agencies to create affordable housing projects, low-barrier navigation centers, supportive housing projects, and transitional housing projects for youth and young adults (“housing crisis projects”). This CEQA exemption, only open to Los Angeles region public agencies, applies to both public and privately owned housing crisis projects.

Section 21080.27(e) imposes requirements where the low barrier navigation center project “is not in its entirety a public work for purposes of Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the Labor Code.” Where the project is not in its entirety a public works, it is exempt under CEQA only if the project sponsor certifies to the lead agency that the construction or rehabilitation work will be subject to prevailing wage laws.

The Legislature intended section 21080.27(e) to ensure that a housing crisis project’s construction and rehabilitation contracts comply with Labor Code prevailing wage laws – whether or not public funds are involved -- before the project will be exempt from CEQA. Because private housing crisis projects may be exempt, the subdivision provides that, if the project is “not in its entirety a public work” for purposes of Labor Code section 1720, it is exempt from CEQA only if the project sponsor certifies to the lead agency that any construction or rehabilitation work will meet prevailing wage law requirements.

FTC is incorrect that the phrase “in its entirety a public work” in section 21080.27(e) means “a project entirely paid for with public funds.” Section 21080.27(e) states that “in its entirety a public work” is defined by the Labor Code. Public works contracts are limited to the construction-type agreements described by Labor Code section 1720. Labor Code section 1720(a)(1) defines “public works” as “[c]onstruction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds.” (emphasis added). Hence, if any part of a construction contract is paid for with public funds, it is a public works contract. Case law also establishes that, if one project contract is a public works, all the project’s construction contracts are public works. Azusa Land Partners v. Department of Industrial Relations, (2010) 191 Cal.App.4th 1, 19–22.

Thus, if any part of a housing crisis project is paid for with public funds, it is a public works project. As a result, there is no need for section 21080.27(e) to require that all housing crisis project costs be publicly funded in order to qualify as “in its entirety a public work”. When it enacted section 21080.27(e), the Legislature knew that a construction contract for a housing crisis project paid for even partly with public funds is in its entirety a public work. “The Legislature is presumed to be aware of existing laws and judicial decisions and to have enacted or amended statutes in light of this knowledge.” League of California Cities v. Superior Court, (2015) 241 Cal.App.4th 976, 986 (citing People v. Overstreet, (1986) 42 Cal.3d 891, 897. Therefore, the Legislature intended section 21080.27(e) to make clear that privately funded housing crisis projects would be subject to prevailing wage laws.[6]

In sum, the proper interpretation of section 21080.27(e)’s imposition of prevailing wage requirements where the low barrier navigation center project “is not in its entirety a public work” is that it ensures all housing crisis project construction contracts pay prevailing wages regardless of the funding source for those agreements. If public funds pay for any part of a housing crisis project’s construction contract, then all its construction contracts are public works, meaning that they must all comply with the prevailing wage laws in Labor Code section 1770 et. seq.

The City argues in the alternative that FTC’s interpretation of section 21080.27(e) does not matter because the City Charter mandates that the City comply with all section 21080.27(e) prevailing wage law requirements. As a result, the Midvale Project is entirely budgeted with public funds. Reply at 6.

If a housing crisis project is not in its entirety a public work, section 21080.27(e)(1)(A) (i) through (iii) imposes the Labor Code’s prevailing wage laws as a condition of a CEQA exemption. The project sponsor must certify that the project will comply with section 21080.27(e)’s prevailing wage law obligations, which are those in the Labor Code.

The City argues that City Charter section 377 mandates all City public works contracts comply with the Labor Code’s prevailing wage laws, which impose the same prevailing wage requirements of section 21080.27(e), and therefore all Midvale Project contracts must meet the requirements of section 21080.27(e). Reply at 3.

“The provisions of California Labor Code Section 1770 et. seq. regarding prevailing wages on public works and related regulations, as now existing and as may be amended, are accepted and made applicable to the City, its departments, boards, officers, agents and employees.” City RJN Ex. 25, p. 453.

The City Charter mandates that every City construction contract is a public work that must comply with all Labor Code prevailing wage law statutes. Neither the City Council, the Mayor, nor any City official may avoid this legal requirement. See Domar Electric, Inc. v. City of Los Angeles, (1994) 9 Cal.4th 161, 171 (“A charter city may not act in conflict with its charter. [Citations.] Any act that is violative of or not in compliance with the charter is void.”). City funds will be used for Project construction. City RJN Ex. 6, pp. 169, 171 (CAO report).

FTC’s assertion that the source of operational funding was not appropriated at the time of Project approval makes no difference. The Labor Code’s prevailing wage laws apply to construction and rehabilitation contracts, not operation agreements. Further, no facts support FTC’s suggestion that some hidden private interest exists to pay to construct or operate the Midvale low-barrier navigation center, which is why the City’s taxpayers are paying to shelter Angelenos experiencing homelessness. Reply at 7, n. 3. Accordingly, every Midvale Project construction contract will be a public works. Reply at 7.

Therefore, even if the Midvale Project is not deemed “in its entirety a public work” under section 21080.27(e), the Midvale Project will comply with the requirements of section 21080.27(e)(1)(A)(i) through (iii) because the City Charter imposes the same obligations via the Labor Code’s prevailing wage law mandates. Reply at 7.

FTC’s argument that the City’s November 2023 NOE and accompanying documents do not present substantial evidence of the certification of the wage and labor requirements for the Midvale Project, and cannot do so because section 21080.27(e) did not exist until January 1, 2024 is unavailing because the City need not declare that it will comply with its own City Charter. There is no need for the City (the Project sponsor) to certify to itself (the CEQA lead agency) that the City will comply with its laws and pay prevailing wages for all construction or rehabilitation contracts; that is required at all times by the City Charter.

The court agrees with the City that the NOE was not required to address elements of a statute that did not exist when adopted. In any event, an NOE is required to do no more than “provide a ‘brief’ description of the approved project, state its location, and set forth reasons for the agency’s finding of exemption.” Stockton Citizens for Sensible Planning v. City of Stockton, (2010) 48 Cal.4th 481, 514; CEQA Guidelines §15602(a)). The NOEs did so by stating that the Project is exempt from CEQA requirements pursuant to section 21080.27 and providing a lengthy narrative. See City RJN Ex. 10, pp. 227-36.[7]

The proper interpretation of section 21080.27(e)’s imposition of prevailing wage requirements where the low barrier navigation center project “is not in its entirety a public work” is that the subdivision ensures that all housing crisis project construction contracts pay prevailing wages regardless of the funding source for those agreements. The Midvale Project is in its entirety a public work. In any event, the Midvale Project will comply with the requirements of section 21080.27(e)(1)(A)(i) through (iii) because the City Charter imposes the same prevailing wage law mandates. No other factual findings are required to conclude that the Project is statutorily exempt. The demurrer to the tenth cause of action for violation of CEQA is sustained for failure to state a claim.

The seventh cause of action seeks declaratory relief and mandamus, alleging that the Project fails to comply with the City’s Fiscal Policy 32. FAP, ¶¶ 102-09.

Fiscal Policy 32 provides: “Reports to the Mayor and City Council shall include Fiscal Impact Statements that include the full cost of the program or service in the current year, plus the future annual costs.” FAP, ¶103.

The CAO’s Fiscal Report, dated September 29, 2023, states: “The recommendations in this report will be funded with the City’s General Fund previously approved for homelessness interventions and the HHAP Round 1 funds. There is no additional impact to the General Fund as a result of the recommendations in this report. Funding for operations of the site will be programmed in a future funding report.” (emphasis added). FAP, ¶103.

FTC argues that the Project’s approval violates Fiscal Policy 32’s requirements for full disclosure of the budget, including operations. Fiscal Policy 32, adopted as a City ordinance, establishes a mandatory legal requirement that reports to the Mayor and City Council shall include Fiscal Impact Statements covering the full cost of a program or service in the current year, as well as future annual costs. Approval of the Project without accounting for its operational expenses constitutes a breach of the legal obligation to provide a complete financial picture to the City Council and the public, rendering the Project and its approvals illegal. FAP, ¶103.

According to a staff report prepared by the Los Angeles Department of Transportation (“LADOT”) but not submitted to the City Council or provided to the public prior to the City Council’s October 20, 2023 action, “[t]he operation and maintenance of Lot No. 707 while used for the Modular Interim Housing Facility will be the sole responsibility of Council District 5.” (emphasis added). The costs associated with this responsibility were not disclosed. FAP, ¶104.

The same report disclosed that CD 5 “shall be responsible for the restoration of Lot No. 707 back to its existing condition as a parking lot, or better, prior to the construction of the Modular Interim Housing Facility; or, in the alternative, Council District 5 shall compensate the SPRF for costs associated with restoring the parking lot by the Department, or other City agency, or independent contractor selected by the Department to perform the work.” (emphasis added). The costs associated with this responsibility were not disclosed. HHAP program funds do not list site restoration as an eligible use. FAP, ¶105.

The same report disclosed that “[s]hould the Board approve the conversion of Lot No. 707 to a Modular Interim Housing Facility, LADOT expects an annual loss of $53,000 to the SPRF based on pre-pandemic revenue. With the Modular Interim Housing Facility expected to remain in place for the next 10 years, the cumulative estimated SPRF revenue impact is a loss of $530,000.” The losses to the SPRF were not disclosed to the City Council. Surplus funds in the SPRF Trust Fund are routinely transferred to the General Fund. Thus, the loss of revenue for Lot 707 will reduce the surplus transfer and impact the General Fund. FAP, ¶106.

The City acknowledges that Fiscal Policy 32 states that CAO reports to the Mayor and City Council “shall include Fiscal Impact Statements that include the full cost of the program or service in the current year, plus the future annual costs” (City RJN Ex. 15, p. 301) and that the City Council’s action adopting the Fiscal Policies states that Fiscal Policy 32 serves a “public participation” goal. Dem. at 13.

The City makes three arguments why mandamus is not available for the CAO’s failure to include operational and restoration costs, and loss of revenue from the SPRF, in the September 29, 2023 fiscal report for the Project.

The City first argues that, while Fiscal Policy 32 applies to CAO reports, nothing in the City’s Fiscal Policies precludes the City Council from acting if the CAO fails to provide a Fiscal Impact Statement. See City RJN Exs 12-14 (Financial Policy enactments). Fiscal Policy 32 is not a limitation on the City Council’s authority to act. Dem. at 13.

FTC fails to respond to this point. That is, FTC does not provide any authority that the CAO’s failure to completely perform a duty under Policy 32 has any impact on the City Council’s ability to approve the Project. The City Council has discretion to overlook a subordinate’s failure and this fact is dispositive of the seventh cause of action.

The City next argues that Fiscal Policy 32 is directory for the CAO, not mandatory, and thus not enforceable. Mandamus can issue only to compel a mandatory obligation to act. See, e.g., State Comp. Ins. Fund v. Workers' Comp. Appeals Bd., (“State Comp. Ins. Fund”) (2016) 248 Cal.App.4th 349, 370. “Whether a particular statute is intended to impose a mandatory duty is a question of interpretation for the courts.” Garrison v. Rourke, (1948) 32 Cal.2d 430, 435). “Neither the word ‘may,’ nor the word ‘shall,’ is dispositive.” People v. Allen, (2007) 42 Cal.4th 91, 101–03. Instead, a court looks to legislative intent to determine what effect to give a regulation. Id. “When the Legislature intends to make a statutory directive mandatory, it generally does so by providing a self-executing consequence for the government’s failure to act….” State Comp. Ins. Fund, supra, 248 Cal.App.4th at 364–65. By contrast, statutes “that do not include a self-executing consequence are almost universally construed as directory, rather than mandatory or jurisdictional.” Id. Neither Fiscal Policy 32, any other Financial Policy, nor other regulation or provision of law imposes any penalty or consequence if the CAO fails to provide a Fiscal Impact Statement. See RJN Exs. 12-14. Dem. at 13-14.

FTC responds that Fiscal Policy 32 states that reports to the Mayor and City Council shall include Fiscal Impact Statements that include future annual costs, and the LAMC consistently defines “shall” as mandatory. LAMC §§ 11.01, 18.01, 4.44, 64.00 (“shall” is mandatory and “may” is permissive). Pet. RJN Exs. 1-4. “‘The Legislature has power to prescribe legal definitions of its own language, and when an act passed by the Legislature embodies a defined term, its statutory definition is ordinarily binding on the courts.’ [Citation.]” City of Los Angeles v. City of Los Angeles Employee Relations Bd., (2016) 7 Cal.App.5th 150, 163. The City has clearly defined “shall” as mandatory, not directory, and that should be binding. Opp. at 12.

This is true but the City correctly replies that, although the CAO’s duty is mandatory, Fiscal Policy 32 is still directory because there is no self-executing consequence for the failure to comply. See State Comp. Ins. Fund, supra, 248 Cal.App.4th at 364–65. Reply at 10-11.

Moreover, the CAO has discretion in performing its mandatory duty under Fiscal Policy 32. The City correctly relies on the fact that “[e]ven if mandatory language appears in a statute creating a duty, the duty is discretionary if the public entity must exercise significant discretion to perform the duty.” Childhelp, Inc. v. City of Los Angeles, (2023) 91 Cal.App.5th 224, 239 (citations omitted). Whether an ordinance imposes a ministerial duty for which mandamus will lie or only a discretionary duty is a question of statutory interpretation and issue of law for the court to decide. Id. Fiscal Policy 32 does not mandate the precise contents of a Fiscal Impact Report, leaving that to the judgment of the CAO. Thus, the CAO has discretion in how to perform a mandatory duty which cannot be second-guessed via mandamus. Reply at 10.

The City’s third argument why mandamus cannot enforce Fiscal Policy 32 is that the FTC 1 FAP alleges (RJN Ex. 2, ¶¶ 103-06) that the LADOT’s General Manager’s report to the Transportation Board before the City Council’s approval of the Midvale Project publicly disclosed the financial impacts that the CAO’s Financial Impact Statement did not disclose. These financial impacts just were not labelled as a CAO Fiscal Impact Report. The Transportation Board approved the report as part of its Project approval, an action that occurred at a noticed public meeting. City RJN Ex. 7; City RJN Ex. 8, p. 4. The report was available to the City Council and the public before the City Council acted. As a result, Fiscal Policy 32’s transparency purpose was met. Dem. at 14.

FTC answers that the LADOT General Manager’s report was never presented to the City Council and never approved by the Transportation Board. Even if the report is part of the administrative record, despite the fact that it was not presented to the City Council or approved by the Transportation Board, it presents inherently factual disputes not capable of resolution on demurrer. The lack of disclosure of operation costs, the costs of restoring Lot 707 by Council District 5, and $530,000 of lost future revenue from the parking lot violates Fiscal Policy 32. The City Council was falsely told that there would be no additional impact to the City’s general fund and questions of what information the City Council received are factual inquiries. Opp. at 12-13.

The court agrees that the adequacy of the LADOT General Manager’s report in lieu of the Fiscal Report is a factual question that cannot be resolved on demurrer.

For the reasons stated, the demurrer to the seventh cause of action is sustained for failure to state a claim.

D. Approval Required by the General Manager of Recreation and Parks (Eighth Cause of Action)

The eighth cause of action seeks declaratory relief and mandamus, alleging that the Project was not approved by the General Manager of the Department of Recreation and Parks (sometimes “General Manager”) as required by LAAC section 8.59. FAP, ¶¶ 110-15.

The Project violates LAAC section 8.59, a component of LAAC Chapter 3, “Local Emergencies,” which establishes a Public Welfare and Shelter Division. FAP, ¶111. FTC is informed and believes, and based thereon alleges, that the General Manager of the Department of Recreation and Parks was not consulted for the planning or implementation of the Project. LAAC section 8.59 exists to ensure efficient and organized responses to such situations. CD 5 and the City exceeded their authority and otherwise committed ultra vires acts by planning and implementing a homeless shelter project without following the procedures prescribed in LAAC section 8.59. The bypassing of the General Manager of the Department of Recreation and Parks as the responsible authority for coordinating sheltering services renders the Project and its approvals illegal. FAP, ¶112.

LAAC section 8.59 (Public Welfare and Shelter Division) provides: “The Public Welfare and Shelter Division shall be under and subject to the control of the Department of Recreation and Parks of the City of Los Angeles. The Chief of this division shall be the General Manager of the Department. The chief shall be responsible for arranging, directing and coordinating sheltering services for persons rendered homeless as a result of a local emergency.”

The City argues that FTC cannot identify any homelessness emergency declaration that activated LAAC section 8.28’s Emergency Operations Organization (“EOO”) provision, and that no such declaration occurred. LAAC section 8.33, which authorizes the Mayor to declare the existence of a local homelessness emergency, provides that a homelessness emergency is not subject to the other provisions of Article 3, Chapter 3, Division 8. These other provisions are LAAC sections 8.27-8.32 and include LAAC section 8.28. By the plain language of LAAC section 8.33, the Mayor’s July 2023 local homelessness emergency declaration did not activate the EOO set forth in LAAC section 8.28. Consequently, the General Manager’s role as part of the EOO was not triggered. Dem. at 14.

Even if LAAC section 8.33 did not exclude activation of the EOO, only those EOO components specifically determined by the mayor are called into service when LAAC section 8.28 is triggered. “[T]he Emergency Operations Organization shall be immediately activated, and all of such portions of its personnel as the Mayor may direct shall be called into active service.” LAAC § 8.28 (emphasis added). FTC can point to no mayoral activation of LAAC section 8.59 or any role for Recreation and Park’s General Manager. Dem at 14-15.

FTC responds that the City is factually wrong. On December 12, 2022, the Mayor declared an emergency under LAAC section 8.27 and explicitly directed that the EOO be activated: “NOW, THEREFORE, I thereby declare the existence of a local emergency and direct all Divisions of the Emergency Operations Organization (EOO) and all other City Departments to take necessary steps for the protection of life, health and safety in the City of Los Angeles.” City RJN Ex. 1, p. 56 (emphasis added). Opp. at 14.

On July 7, 2023, the Mayor declared an emergency under LAAC section 8.33, directing as follows: “NOW, THEREFORE, I thereby declare the existence of a local emergency on affordable housing and homelessness and direct all City Departments to take necessary steps for the protection of life, health and safety in the City of Los Angeles. The Executive Directives issued by me in response to the original declaration of emergency and its renewal shall remain in full force and effect through the pendency of this declaration.” City RJN Ex. 2, p. 112 (emphasis added). Opp. at 14.

FTC argues that activation of the EOO in the Mayor’s December 12, 2022 declaration remained in effect through the life of the LAAC section 8.33 declaration issued on July 7, 2023. The EOO was activated by the Mayor’s July 7 declaration, triggering the mandate that the General Manager be in control of “arranging, directing and coordinating sheltering services for persons rendered homeless as a result of a local emergency.” LAAC §8.59 (Pet. RJN Ex. 5). The City bypassed the General Manager in violation of LAAC section 8.59, which renders the Project approvals illegal. Opp. at 14.

The City replies that LAAC section 8.59 triggers the General Manager’s obligation only when the Mayor activates the General Manager’s role as part of the City’s EOO. Unbeknownst to anyone -- certainly not the Mayor or the General Manager -- FTC’s argues that the Mayor’s December 12, 2022 declaration activated the EOO and required the General Manager to find shelter for the City’s homeless. No facts show that ever occurred. But even if it had, the December 2022 declaration expired on July 9, 2023 as stated in the Mayor’s July 7, 2023 declaration, months before the City Council approved the Midvale Project. City RJN Ex. 2, p. 111 (“WHEREAS, on December 12, 2022, I declared the existence of a local emergency on homelessness with a sunset of six months subject to renewal. The City Council renewed the declaration of emergency and established a new sunset of July 9, 2023….”) (emphasis added). The General Manager was never charged with finding shelter for all of the City’s homeless and held no such responsibility for homeless projects when the Midvale Project was approved October 20, 2023. Reply at 11.

The court agrees with the City. The Mayor’s July 9 declaration stated that the City Council renewed her December 12, 2022 declaration with a new sunset date of July 9, 2023. She also stated that her previous EDs issued in response to the original declaration of emergency and its renewal shall remain in full force and effect through the pendency of the July 9 declaration. The Mayor issued six EDs between December 12, 2022 and July 9, 2023. City RJN Ex. 1, p. 21 (¶¶ 27-31). Neither party indicates what these directives stated, but they are separate and distinct from the declarations.

According to the Mayor’s July 7 declaration, the EDs remained in effect but the December 2022 declaration, and its activation of the EOO, did not. No ED is alleged to support activation of the General Manager’s role as part of the City’s EOO at the time the Project was approved on October 20, 2023.

The demurrer to the eighth cause of action is sustained for failure to state a claim.

E. Failure to Comply with Asset Evaluation Framework (Ninth Cause of Action)

The ninth cause of action seeks declaratory relief and mandamus, alleging that the City failed to comply with its Asset Evaluation Framework for the Project. FAP, ¶¶ 116-22.

The City Asset Evaluation Framework (C.F. 12-1549-S3) involves several vital elements, including fiscal impact assessments, comprehensive reporting on existing parking agreements (such as parking covenants and affidavits) and the imperative consideration of the mobility, livability, and commercial needs of the surrounding community. The City’s Asset Evaluation Framework advances the City’s economic development and housing efforts by establishing a uniform procedure to evaluate and designate City-owned properties for economic development, housing opportunities, and/or other City purposes. Another goal of the Asset Evaluation Framework is to identify higher and better uses for such properties to maximize the value of City-owned assets and to address priority concerns such as job creation and affordable housing. FAP, ¶117.

The City failed to undertake the required evaluation for the repurposing of Parking Lot 707 through the Project as expressly detailed in CD 5’s adopted Amending Motion 3D of motion CF 23-0360. [8] Although FTC submitted evidence of parking covenants and affidavits for Lot 707, these were never disclosed to or addressed by the Transportation Board, thereby denying due process to those property holders. There is no evidence that the covenant and affidavit owners were informed of the loss of their recorded rights. FAP, ¶118.

The conversion of Parking Lot 707 into a homeless shelter site has far-reaching and deleterious implications for local businesses. The general lack of street parking after 4 p.m. in the vicinity could inflict significant harm on commerce. The establishment of a low-barrier homeless shelter essentially surrounded on three sides by a single-family neighborhood and business district also raises genuine concerns about safety and community compatibility. The loss of Parking Lot 707 will also result in the unavailability of the only street-level ADA parking in the vicinity. The City’s failure to conduct the required Asset Evaluation Framework on these critical issues renders the Project approvals illegal. FAP, ¶119.

FTC argues that the Asset Evaluation Framework provides a schematic of factors to be considered in the re-use of City property. City RJN Ex. 23, p. 436. The City failed to analyze the Midvale property under this framework when the City Council converted a City-owned parking lot with 25+ spaces to interim housing. FAP, ¶118. Opp. at 14-15.

The City contends that the Asset Evaluation Framework applies only where a City asset is proposed to be sold or leased to determine whether the proceeds should be dedicated to the City’s Economic Development Trust Fund. The Asset Evaluation Framework causes the City to evaluate and properly utilize funds from the lease or sale of City property. City RJN Ex. 23, p. 430. The Midvale Project will be constructed on City property and operated by the City. City RJN Ex. 3, p. 133–34 (City Council approval); City RJN Ex. 6, pp. 169-70 (site location). The Project will be paid for with public funds. City RJN Exs. 2-6. The LADOT parking lot on which the Project is located is not being sold or leased, and the Project will not generate revenues. Therefore, the Asset Evaluation Framework has no relevance. Dem. at 15; [9] Reply at 11-12.

FTC responds that the City is not correct that the Asset Evaluation Framework only applies to City property that is leased or sold. The Asset Evaluation Framework specifically contemplates municipal uses. “4a. MUNICIPAL USE Continued City use.” City RJN, Ex. 23, p. 436. The Asset Evaluation Framework was specifically invoked for the Midvale Project by City Councilmember motion even though a sale or lease of the parking lot property was not contemplated. FAP ¶¶ 117-19. Opp. at 15. Because the Asset Evaluation Framework is applicable to the Midvale Project, and because the FAP alleges that the City failed to comply with the Asset Evaluation Framework, the demurrer to the ninth cause of action should be overruled. Opp. at 15.

The City replies that the May 2023 motion (CF 23-0360) is not part of the same project file as the Midvale Project (23-1066). City RJN Ex. 3, p. 133. Nor is the motion referenced in the City Council’s approval of the Project. City RJN Exs. 3-6, pp. 133- 71. As a result, FTC fails to establish its relevance. Reply at 12.

The difference in project file numbers for the May 2023 motion and the Project is not controlling. The City fails to show that one City Council file number cannot have relevance to another file.

However, the City is correct (Reply at 12) that, assuming the motion was adopted, its language does not show application to the City Council’s approval of the Project. The May 2023 motion proposes that the City Council direct the CAO that, “when conducting an initial feasibility study analyzing LADOT parking facilities for repurposing as supportive or affordable housing as outlined in the City’s Asset Evaluation Framework” the CAO also report on nearby parking agreements and impacts to nearby businesses and the community “if stipulated in the Council motion initiating the feasibility analysis.” See Pet. RJN Ex. 6 (emphasis added). Thus, the May 2023 motion only requires an additional Asset Evaluation Framework impact report where a City Council feasibility analysis report motion is adopted that directs (“if stipulated in the Council motion”) the creation of such additional report. FTC identifies no City Council directive ordering the CAO to prepare the type of additional report outlined in the May 2023 motion.

The demurrer to the ninth cause of action is sustained for failure to state a claim.

The City seeks to abate the entire FAP, with the exception of any of the seventh to tenth causes of action to which the demurrer is sustained. Dem. at 16.

CCP section 430.10(c) expressly provides that a party may demur where “there is another cause of action pending between the same parties on the same cause of action.” See People ex rel. Garamendi v. American Autoplan, Inc., (1993) 20 Cal. App. 4th 760, 770. The pendency of another action is classified as a plea in abatement, and, as such, is “not favored.” This disfavor is expressed in a number of rules: “(1) The objection itself is strictly limited so that, whether raised by demurrer or answer, the defendant must show that the parties, the cause of action, and issues are identical, and that the same evidence would support the judgment in each case. . . (2) demurrer will not be sustained if the complaint also shows that the former action is no longer pending. . . (3) even if objection is good demurrer should not be sustained without leave to amend and the action should not be dismissed.” 5 Witkin, Cal. Proc., Pleading, (4^th ed. 1997) §924; California Union Ins. Co. v Trinity River Land Co. (1980) 105 Cal App 3d 104, 108.

In determining whether another action is pending between the same parties on the same cause of action, the facts in the two causes of action are compared to determine what primary right has been invaded. California follows the "primary right theory," which holds that every judicial action must involve the following elements: a primary right possessed by the plaintiff, and a corresponding primary duty devolving upon the defendant; a wrong done by the defendant that consisted of a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this wrong; and the remedy or relief itself. Of these elements, the combined primary right, duty, and wrong constitute the cause of action. Bush v Superior Court (1992) 10 Cal. App. 4th 1374, 1384. Even when a demurrer is properly sustained on the ground of another action pending, the proper order is to abate further proceedings pending termination of the prior action, not an order of dismissal. Childs v Eltinge (1973) 29 Cal. App. 3d 843, 847-8.

In seeking abatement, the City contends that FTC’s pending actions both assert two primary rights and legal wrongs: (1) the Midvale Project was unlawfully approved and (2) Midvale Project agreements were unlawfully awarded for failure to competitively bid them. In FTC 1, FTC seeks to set aside LAAC section 8.33, ED1, and ED3. In this case, FTC seeks to enforce LAAC section 8.33, ED1, and ED3 to substantiate these causes of action. The City concludes that FTC has split the same primary rights between two courts. Dem. at 17.[10]

As FTC argues (Opp. at 10), the primary rights differ in FTC 1 and this case. FTC 1 seeks to set aside, inter alia, LAAC section 8.33, the Mayor’s July 7, 2023 declaration issued under LAAC section 8.33, and EDs 1 and 3. This case challenges the October 20, 2023 approval of the Midvale Project based on state and local laws without any challenge to LAAC section 8.33 and the EDs. The harm to City residents alleged in FTC 1 is the unlawful grant of authority to the Mayor to declare an emergency for chronic issues that do not qualify as an emergency and do not justify the granting of extraordinary executive powers that suspend normal governmental processes. The harm to City residents alleged in the instant case is the approval of the Project that places a low-barrier navigation center without mandatory safe parking (Govt. Code §8698.4(c)(1)) on a site that is not a “public facility” as defined by Govt. Code section 8698.1(c), in a residential community on R1-zoned property, that deprives the local businesses necessary parking and eliminates ADA parking in the area, and forsakes an estimated $530,000 in parking revenue, all of which the City failed to evaluate under mandatory City codes. This harm only arose after the filing of FTC 1 on September 25, 2023. The primary rights and primary wrongs are clearly different.

“Under the rule of exclusive concurrent jurisdiction, when two superior courts have concurrent jurisdiction over the subject matter and the parties, the first court to assume jurisdiction has exclusive and continuing jurisdiction until such time as all necessarily related matters have been resolved.” Lawyers Title Ins. Corp. v. Superior Court, (1984) 151 Cal.App.3d 455, 460. The rule applies “to avoid unseemly conflict between courts that might arise if they were free to make contradictory decisions or awards at the same time or relating to the same controversy; another reason is to protect litigants from the expense and harassment of multiple litigation.” Scott v. Industrial Acc. Commission, (1956) 46 Cal.2d 76, 81–82. The remedies in the suits need not be precisely the same; rather, the issues in the two proceedings must be substantially similar and the suits must have the potential to result in conflicting judgments. County of Siskiyou v. Superior Court, (2013) 217 Cal.App.4th 83, 91.

“Although the rule of exclusive concurrent jurisdiction is similar in effect to the statutory plea in abatement, it has been interpreted and applied more expansively, and therefore may apply where the narrow grounds required for a statutory plea [in] abatement do not exist.” People ex rel. Garamendi v. American Autoplan, Inc., (1993) 20 Cal.App.4th 760, 770 (emphasis added; citation omitted). Unlike the statutory plea abatement, the rule of exclusive concurrent jurisdiction does not require absolute identity of parties, causes of action or remedies sought in the initial and subsequent actions. Id. If the court exercising original jurisdiction has the power to bring before it all the necessary parties, the fact that the parties in the second action are not identical does not preclude application of the rule. Id. Moreover, the remedies sought in the separate actions need not be precisely the same so long as the court exercising original jurisdiction has the power to litigate all the issues and grant all the relief to which any of the parties might be entitled under the pleadings. Id. See also Plant Insulation Co. v. Fibreboard Corp., (1990) 224 Cal.App.3d 781, 788.

“Although their claimed rights and therefore their causes of action are distinct, the issues are substantially the same, and individual suits might result in conflicting judgments.” County of Siskiyou v. Superior Court (2013) 217 Cal.App.4th 83, 89 (italics omitted). “[T]he issues in the two proceedings must be substantially the same and the individual suits must have the potential to result in conflicting judgments.” Id. at 91 (citation omitted).

The City contends that the FAP’s claims seeking to enforce LAAC section 8.33, ED1, and ED3 would be fully resolved by a ruling in FTC 1 that those enactments are not valid. The FAP’s fourth cause of action alleges that ED1 regulates any City low barrier navigation center (the City did not rely ED1 for the Midvale Project). This claim cannot proceed if ED1 is set aside in FTC 1. The fifth cause of action alleges a violation of ED3’s requirements. The sixth cause of action alleges competitive bidding violations of ED3 and LAAC section 8.33, and the eighth cause of action asserts non-compliance with EOO rules triggered by LAAC section 8.33. Even the tenth cause of action under CEQA involves the City’s emergency enactments challenged in FTC 1 because the City cited the Mayor’s homelessness emergency declaration as support for the Pub. Res. Code section 21080(b)(4) exemption in the NOE. City RJN Ex. 5, p. 151. Dem. at 18-19; Reply at 8-9.[11]

The City notes the potential for conflicting judgments. Contrary to the FAP’s sixth cause of action’s contention about competitive bidding, the City will argue that LAAC section 8.33 allows the City to sole-source the Midvale Project agreements. FTC will be able to respond by challenging the facial validity of LAAC section 8.33, the same issue it is litigating in FTC 1. Dem. at 18-19.

The issues between the cases are not substantially the same. See County of Siskiyou v. Superior Court, supra, 217 Cal.App.4th at 89. FTC correctly argues that the instant case arises from a different transaction and events than FTC 1. FTC 1 concerns legislative and executive actions that occurred prior to approval of the Midvale Project and filing of this case. FTC also alleges CEQA violations in this case which have nothing to do with FTC 1. Opp. at 11.

Although the issues are not substantially the same, there is a prospect of inconsistent rulings. FTC 1 challenges the validity of LAAC section 8.33, ED1, and ED3. While the instant case does not challenge those enactments, it does assume their validity as part of the reason why the Project approval should be set aside. If FTC 1 upholds their validity, there will be no impact on this case. If FTC 1 declares any of the enactments invalid, it could affect the reasoning of this case. For this reason, the court has stated that it will delay the trial of this case pending the outcome of FTC 1. This delay is not based on the exclusive concurrent jurisdiction rule, however, and the court may end the delay if FTC 1 is delayed too long. In other words, the court will maintain flexibility on the trial of this case.

The court also agrees with the City that the entire case should be delayed. September 25, 2023. Although causes of action one through three and seven through nine do not seek to enforce the challenged emergency homeless enactments, they should be included in the stay pursuant to the court’s broad powers to set procedures for writ matters. CCP §187; Voices of the Wetlands v. State Water Resources Control Bd., (2011) 52 Cal.4th 499, 526. Otherwise, there could be multiple trials that waste judicial resources.

FTC argues that there is a practical reason not to delay the instant case. If a decision in FTC 1 is delayed -- the City’s demurrer in FTC 1 was recently continued from March 28 to April 25, 2024, suggesting that FTC 1 may not be resolved soon -- a decision in this case is necessary as the Midvale Project is proceeding with City actions and contracts. Opp. at 11.

The City correctly responds that FTC created the situation mandating a delay. Although FTC1 action was filed first, the Petition in this case, filed on December 5, 2023, re-asserted those facial challenges and alternatively sought to enforce them if the court found them valid. This was permissible. Lambert, supra, 52 Cal.2d at 352. Rather than dismiss FTC 1 and litigate its claims in this action, FTC filed the FAP deleting its facial challenges to the City’s homeless emergency enactments from this action. This placed FCT’s facial challenges to the emergency actions before Department 86 and its reliance on them in this case. Having created the situation, FTC cannot complain about the delay. Reply at 9.

The court will not stay this case but will delay the trial for the outcome of FTC 1. This delay is not based on the exclusive concurrent jurisdiction rule, and the court may end the delay if FTC 1 is delayed too long. In other words, the court will maintain flexibility on the trial of this case.

The demurrer is sustained for the seventh through tenth causes of action. The trial will be delayed awaiting the outcome of FTC 1, but the court will monitor the progress of that case and may end the delay in its discretion.

The City seeks to strike the FAP’s allegations (1) that the Public Contract Code governs the City’s competitive bids, (2) of a non-existent Govt. Code section, and (3) concerning the Midvale Project service provider agreement.[12]

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. CCP §435(b)(1). CCP section 436 permits the court to strike out any irrelevant, false, or improper matter, as well as any part of any pleading not in conformity with an order of the court. Irrelevant matters are defined as those allegations that are not essential to the statement of a claim or that are neither pertinent nor supported by an otherwise sufficient claim. CCP §431.10(b).

The notice of motion to strike shall be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and shall be noticed for hearing and heard at the same time as the demurrer. CRC 3.1322(b). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. CRC 3.1322(a).

A motion to strike can serve an important function of deleting matter for which a defendant may not be able to demur but for which the defendant should not have to suffer discovery and navigate the thicket of proceedings for summary adjudication. Ph II, Inc. v. Superior Court, (1995) 33 Cal.app.4^th 1680, 1682-83. The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. CCP §437(a). Matter to be judicially noticed shall be specified in the notice of motion. CCP §437(b). When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. Perlman v. Municipal Court, (1979) 99 Cal. App. 3d 568, 575.

The City moves to strike the FAP’s allegations concerning the Public Contract Code’s competitive bidding requirements (1) in the sixth cause of action’s title and (2) paragraph 85 in its entirety, paragraph 86 at lines 14-15 (“as well as Public Contracts Code Section 20162”), and paragraph 89 at line 22 (“Public Contracts Code Section 20162”). Mot. at 2.

“[The Public Contract Code] is the basis of contracts between most public entities in this state and their contractors and subcontractors. With regard to charter cities, this code applies in the absence of an express exemption or a city charter provision or ordinance that conflicts with the relevant provision of this code.” Public Contract Code §1100.7.

The City argues that it is a charter city and the Public Contract Code’s competitive bidding provisions do not control it. Public Contract Code section 1100.7 expressly exempts cities whose charter contains conflicting contracting provisions and City Charter sections 370-78 do just that. City RJN Ex. 26. See also LAAC §10.15 (City RJN Ex. 2). As the City Charter conflicts with the Public Contract Code, the latter is inapplicable to the City’s contracts. Mot. at 6.

The courts also hold that a city’s public contracting is a municipal affair pursuant to the constitutional home rule doctrine. Thus, pursuant to Article 5 of the California Constitution, all authority over a charter city’s contracting is governed by local law where local law exists. The issue whether state bidding provisions bind charter cities was addressed and decided in Smith v. City of Riverside, (“Smith”) (1973) 34 Cal.App.3d 529, 537, in which the court held that the mode of contracting work in the city was a municipal rather than a statewide concern and a Government Code bidding procedure did not apply. Id. No developments in this area of the law in the ten years after Smith was decided vitiated that ruling. Piledrivers’ Local Union v. City of Santa Monica, (“Piledrivers”) (1984) 151 Cal.App.3d 509, 511–12. Likewise, nothing has changed in the 40 years since Piledrivers was decided. Thus, the Public Contract Code regulation of bidding is inapplicable to the City and the FAP’s allegations that any award of a City contract violates the requirements of the Public Contract Code must be stricken as irrelevant. Mot. at 7.

FTC notes that the City is not exempt from competitive bidding. City Charter section 370 states: “Every contract involving consideration reasonably valued at more than an amount specified by ordinance shall, except in cases of urgent necessity for the preservation of life, health or property as provided in Section 371(e)(5), be made in writing, or other manner as provided by ordinance.”

City Charter section 371(a) then specifies: “Except as provided in subsection (e) below, the City shall not be, and is not, bound by any contract unless the officer, board or employee authorized to contract has complied with the procedure for competitive bidding or submission of proposals established by this section and ordinance.” (emphasis added). Opp. at 5.

City Charter section 371(e)(6) provides an exemption from competitive bidding for “[c]ontracts entered into during time of war or national, state or local emergency declared in accordance with federal, state or local law, where the Council, by resolution adopted by two-thirds vote and approved by the Mayor, suspends any or all of the restrictions of this section or their applicability to specific boards, officers or employees.” (emphasis added).

FTC argues that the City cannot point to a vote by the City Council suspending competitive bidding for the Midvale Project. Similarly, there is no order or action from the Mayor under LAAC section 8.33 to suspend competitive bidding for the Midvale Project. Opp. at 5-6.

FTC argues that the holding in Piledrivers, supra, 151 Cal.App.3d at 511-12, does not grant the City general immunity from the Public Contract Code. Howard Contracting, Inc. v. G. A. MacDonald Construction Co. (1998) 71 Cal.App.4th 38, 51, is on point. In that case, the City lost its home rule argument because it failed to establish a conflict between the Public Contract Code and any charter provision or municipal enactment. Similarly, no conflict exists here because the potential exemption does not apply. The City cannot show any vote suspending competitive bidding for Midvale or in the relevant time period. The FAP’s allegations concerning competitive bidding violations are appropriate and should not be stricken. Opp. at 6.

FTC misreads the City’s argument. The City is not arguing that competitive bidding is not required for the Project. Rather, the City contends that the City Charter’s competitive bidding requirements govern the City’s contracts, and the Public Contract Code does not. Nonetheless, the City is wrong to conclude that, just because it has its own competitive bidding requirements, all Public Contract Code provisions concerning competitive bidding necessarily conflict with the City’s competitive bidding requirements. As a charter city, the City is not governed by the Public Contract Code competitive bidding requirements where they conflict. City Charter section 371 and LAAC section 10.15 govern the City’s contracting process. The City fails to show the FAP’s specific references to the Public Contract Code are provisions that conflict with the City Charter and LAAC.

The City moves to strike the FAP’s reference to Govt. Code section 8698(c)(5) in FAP paragraphs 80 (entirety) and 83, line 23 (“and Govt. Code Section 8698(c)(5)”) because no such provision of law exists.

FTC responds that the City’s counsel was advised in the meet-and-confer that the intended citation is Govt. Code section 8698.1(c)(5), not to 8698(c)(5). Govt. Code section 8698.1(c)(5) provides: “No new permits shall be authorized pursuant to this subdivision on and after January 1, 2023.” FTC filed a Notice of Errata for this purpose on March 18, 2024. The City’s argument over an obvious typo that was discussed in the meet-and-confer unnecessarily consumes the court’s time and resources. There is no reason to strike any part of FAP ¶80. Opp. at 7.

The City moves to strike all allegations concerning a Midvale Project service provider agreement: (1) Paragraphs 97 and 98 (asserting, on information and belief, facts concerning the award of the Midvale Project’s service agreement which has not yet been awarded); (2) Paragraph 85 at lines 9-11 (“Petitioner is informed and believes and based thereon alleges that the City never issued Requests for Proposals or Requests for Qualifications for the Project.”); (3) Paragraph 87 at lines 16-18 (“Petitioner is informed and believes that the City failed to proceed with the competitive bidding process with…LA Family Housing, which Petitioner is informed and believes the City has selected as the provider of the…operator”); (4) Paragraph 98 at lines 24-26 (“In addition, Petitioner is informed and believes and based thereon alleges that the City and/or Council District 5 intend that the service contract for the Project will continue for as long as 10 years.”); (5) Paragraph 129 at lines 12-16 (“[I]t is anticipated that a 10-year lease or similar operating and/or funding agreements may be executed in the future with the service provider, County, and/or LAHSA. In the future, the City may execute a lease or similar operating and/or funding agreements with the service provider, County, and/or LAHSA.”). Mot. at 2-4.

The City argues that these allegations in the FAP seek to set aside an alleged City service provider contract with LA Family Housing for operation of the Midvale Project low barrier navigation center. No such contract exists. Even the FAP admits that FTC does not know whether a service provider agreement has been executed. See FAP, ¶97. At most, the FAP asserts that it would be unlawful if a service agreement is awarded without competitive bidding. That is the very essence of an unripe claim seeking an advisory opinion that must be struck. See Pacific Legal Foundation v. California Coastal Com., (1982) 33 Cal.3d 158, 170–71. Moreover, no service agreement has been awarded and proposals from service providers are being solicited through a competitive bidding process run by LAHSA for the City. City RJN Exs. 20-22. Mot. at 8. Nor are the FAP’s contentions concerning the Midvale Project service agreement sufficient to create a disputed question of fact because they are all alleged upon information and belief without disclosing the basis of FTC’s belief. A “‘[p]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true’” [citation], and thus a pleading made on information and belief is insufficient if it “merely assert[s] the facts so alleged without alleging such information that ‘lead[s] [the plaintiff] to believe that the allegations are true.’” Gomes v. Countrywide Home Loans, Inc., (2011) 192 Cal.App.4th 1149, 1158-59 (citation omitted). No Project service agreement exists and the facts subject to judicial notice show that process is pending and will occur via competitive bidding. Mot. at 9-10.

FTC responds that the Midvale project was shrouded in secrecy until it was announced to the public as a “done deal.” FAP, ¶2. Given that secrecy, plus the information the City belatedly and contradictorily released through California Public Records Act responses, FTC alleged on information and belief that L.A. Family Housing had or would receive the service provider contract for the Midvale Project. “‘Plaintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true.’ [Citation.]” Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550. The City also seeks to strike those information and belief allegations, claiming they are not true or do not give rise to a justiciable controversy, relying upon the City’s RJN Exhibits 20-22, which are documents concerning a purported Request for Proposals (“RFP”) (the alleged truth of which cannot be judicially noticed) released on February 16, 2024, seven days prior to filing of the FAP. Opp. at 9.

Lack of ripeness is not a basis to strike an allegation. Additionally, the RFP exhibits (Exs. 20-22) do not necessarily establish the falsity of the FAP’s allegations. 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 notice. Cruz v. County of Los Angeles, supra, 173 Cal.App.3d at 1134. The RFP exhibits show the existence of a competitive bidding process but do not eliminate FTC’s suspicion (Opp. at 9) that they are a sham. They do not prove that the FAP’s allegations on information and belief about an award of the service provider contract to L.A. Family Housing are false, and the same is true of the allegations on information and belief that the service provider contract would have a length of ten years.

However, the adequacy of a pleading’s allegation on information and belief is a ground for a motion to strike. See Gomes v. Countrywide Home Loans, Inc., supra, 192 Cal.App.4th at 1158-59. The FAP does not allege the basis which leads FTC to believe the information and belief allegations to be true. The motion to strike is granted on this ground.

The motion to strike is granted with respect to the FAP’s allegations about a Midvale service provider agreement and otherwise is denied.

[1] Judge Curtis Kin has since been reassigned to Department 86. Accordingly, FTC 1 is now assigned to Department 86.

[2] The City’s demurrer does not rely on the exemption in Pub. Res. Code section 21080(b)(4), but the City explains that it has not abandoned the emergency exemption. Reply at 8.

[3] When HHAP Round 1 grants were statutorily authorized, “navigation center” was defined as “a Housing First, low-barrier, service-enriched shelter focused on moving homeless individuals and families into permanent housing that provides temporary living facilities while case managers connect individuals experiencing homelessness to income, public benefits, health services, shelter, and housing.” RJN Ex. 28 (H&S Code §50216(n), effective June 31, 2019 to June 29, 2020). The definition remains the same today. H&S Code §50216(o). Dem. at 11-12.

[4] The City suggests that FTC seeks to impose the cost of gathering and preparing a CEQA record of tens of thousands of emails and their attachments that will have no bearing on whether this CEQA exemption applies, sapping City staff time from work on other housing crisis projects. Reply at 3.

[5] FTC opines that the City’s confusion on this cause of action appears to be related to the fact that the City included AB 1197 in its analysis of the section 20180.27 exemption. AB 1197 was the former iteration of section 21080.27. AB 785 substantially changed section 21080.27, effective January 1, 2024, with different definitions and different required findings. Opp. at 19.

The City explains that the Project’s low-barrier navigation center expressly was designed to meet the requirements of the section 21080.27 exemption. FTC’s position is hinged solely upon section 21080.27(e), which are prevailing wage law requirements for construction contracts added two months after the City Council’s CEQA determination for the Midvale Project. Section 21080.27(e) took effect on January 1, 2024 -- two months after the City’s October 20, 2023, Midvale approval. City RJN Ex. 3, p. 133. Subsection (e) was not added to section 21080.27 until September 8, 2023, a mere five days before AB 785 was approved by the Legislature and month prior to the Governor’s signature. City Reply RJN Exs. 35 (bill history), 36 (prevailing wage amendment), and 37 (governor approval). Reply at 4.

[6] As the City argues, section 21080.27(e) addresses only construction and rehabilitation contracts, not all housing crisis project contracts (such as contracts to operate the project). FTC’s definition would require a project sponsor to certify that it will pay prevailing wages for a public work contract even where the housing crisis project involves no contract (e.g., an entitlement). Reply at 5.

[7] Although it does not bear on the existence of substantial evidence on demurrer, the City notes that whether a CEQA exemption applies is not limited to facts stated in an NOE because a lead agency can prove that a never-asserted exemption applies as a defense to a CEQA challenge. See Del Cerro Mobile Estates v. City of Placentia, (2011) 197 Cal.App.4th 173, 179; Erven v. Board of Supervisors, (1975) 53 Cal.App.3d 1004, 1014. Reply at 7-8.

[8] The motion reads: “I FURTHER MOVE that the CAO, when conducting an initial feasibility study analyzing LADOT parking facilities for repurposing as supportive or affordable housing as outlined in the City’s Asset Evaluation Framework (C.F. 12-1549-S3) also include a report on the existence of any parking agreements between the city and surrounding businesses and the fiscal impacts of the potential repurposing, as well as contemplation of the mobility, livability, and commercial needs of the nearby community if stipulated in the Council motion initiating the feasibility analysis.” Pet. RJN Ex. 6 (emphasis added). Opp. at 15, n. 1.

In objecting to FTC’s request for judicial notice of this motion, the City argues (Reply at 12) that this is an unauthenticated and lacks proof that the City Council ever adopted it. True, and the court sustained the City’s objection to this request. Nonetheless, the FAP pleads the existence of this motion (FAP, ¶118), which must be accepted as true on demurrer. The wording of the motion is not in the FAP, however, and the court considers its language only for purposes of argument.

[9] The citations in the City’s moving papers do not comport with its RJN exhibits.

[10] The City adds that, although FTC filed its initial action September 25, 2023, a little less than a month prior to the Midvale Project’s final approval on October 20, 2023, nothing prevented FTC from amending FTC 1 to assert its alternative counts in a single action. FTC was well aware of the Midvale Project when it filed the FTC 1 complaint on September 25, 2023. See RJN Ex. 9. Dem. at 17-18.

[11] The City adds that, once FTC 1 is decided in the merits, it may be entitled to assert that all of the FAP’s counts are barred by res judicata and collateral estoppel. See Busick v. Workmen's Comp. Appeals Bd., (1972) 7 Cal.3d 967, 974 (res judicata bars litigation of issues that could have been presented as well as those that were litigated). Dem. at 19. These potential bars are not a reason to stay.

[12] The City objects to the declarations supporting FTC’s opposition. The objections are sustained. See CCP §437(a).