Judge James C. Chalfant, Case Number: 23STCP04410, Date: 2025-03-11 Tentative Ruling

Petitioner Fix the City, Inc. (“FTC”) moves to vacate the judgment and enter a new judgment requiring Respondent City of Los Angeles (“City”) to comply with its mandatory and ministerial duties under state and local laws and void the Midvale Project (sometimes, the “Project”).

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

Petitioner FTC commenced this proceeding on December 5, 2023. On February 23, 2024, FTC filed the First Amended Petition (“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 Project is a “low-barrier” interim housing project using 8x8 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.

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.

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 Project site is Los Angeles Special Revenue Parking Fund (“SPRF”) City parking lot 707 (“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 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 – i.e., 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 Lot 707 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 later restoration of the parking lot. FAP, ¶14.

On October 4, 2023, the City’s 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 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. The new Pub. Res. Code 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 SPRF, 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 Pub. Res. Code 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.” Pub. Res. Code §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 Pub. Res. Code §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 Pub. Res. Code section 21080.27 (then AB 1179). FAP, ¶24.

On November 1, 2023, the City 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 to operate the Project 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, for traditional mandamus, alleges that the Project approval violated the Exposition Corridor Transit Neighborhood Plan (“Expo Specific Plan”) by failing to adhere to any of the Expo Specific Plan’s mandatory procedures. FAP, ¶¶ 43-51.

The second cause of action, for traditional mandamus, alleges that the City incorrectly relied on LAMC section 12.80 because the Project is not a “shelter for the homeless” as defined in that ordinance. FAP, ¶¶ 52-62.

The third cause of action, for declaratory relief, alleges that the court should find that the Project is a low barrier navigation center that cannot be approved under LAMC section 12.80 because low barrier navigation centers are not “shelters for the homeless” as defined in LAMC section 12.03. FAP ¶¶, 63-66.

The fourth cause of action, for traditional mandamus, alleges that Project approval must be set aside to the extent it relies on ED1 because ED1 does not apply, or in the alternative, because ED1 expressly prohibits creation of a shelter for the homeless on an R1-zoned location, and the Project site is partially zoned R1. FAP, ¶¶ 67-73.

The fifth cause of action, for traditional mandamus, alleges that the Project approval violates requirements of ED3 and State law. FAP, ¶¶ 74-83.

The sixth cause of action, for traditional mandamus, alleges that the City entered into a LifeArk design/fabrication contract for the Project that is unlawful because the contract was awarded without competitive bidding. FAP, ¶¶ 74-83.

On May 28, 2024, the court sustained the City’s demurrer without leave to amend for the FAP’s seventh through tenth causes of action.

On December 11, 2024, the court issued its decision denying the FAP and dismissing the seventh through tenth causes of action pursuant to CCP section 581(f)(1).

A judgment by the court may be set aside, and a new judgment entered, where the substantial rights of the moving party are materially affected and justify the new judgment because (1) there is an incorrect or erroneous legal basis for the decision, not consistent with or supported by the facts or (2) the judgment is not consistent with or supported by a special verdict. CCP §663. A CCP section 663 motion does not allow the court to reweigh facts. It lies only on the basis of uncontroverted evidence. Simac Design, Inc. v. Alciati, (1979) 92 Cal.App.3d 146, 153-54.

A party intending to move to vacate the judgment must file with the clerk and serve upon each adverse party a notice of his intention to do so, designating the grounds upon which the motion will be made and specifying the particulars in which the legal basis for the decision is not consistent with or supported by the facts, or in which the judgment is not consistent with the special verdict, either: (1) before the entry of judgment; or (2) within 15 days of the date of mailing of notice of entry of judgment by the clerk of the court pursuant to CCP section 664.5, or service upon him by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest. CCP §663a.

The court’s power to rule on the motion shall expires 75 days from the clerk’s mailing of notice of entry of judgment pursuant to CCP section 664.5, or 75 days after service upon the moving party by any party of written notice of entry of the judgment, whichever is earlier. CCP §663a(b).

The City presents evidence that is inadmissible for the motion to vacate. Simac Design, Inc. v. Alciati, supra, 92 Cal.App.3d at 153-54. The evidence would be admissible if the motion were deemed to be a motion for new trial. Even under a new trial standard, FTC objects on the grounds that the City cannot show that the evidence meets the requirement of “newly discovered evidence” under CCP section 657(4). A party seeking to introduce such evidence must show (1) the evidence is newly discovered, (2) it could not with reasonable diligence have been discovered and produced earlier, and (3) the evidence is material. Missionary Guadalupanas of Holy Spirit, Inc. v. Rouillard, supra, 38 Cal.App.5^th at 438.

The City meets this test. The evidence in its declarations concerns issues that were raised for the first time in FTC’s reply brief at trial. As such, the City had no opportunity to present this evidence. In this sense, the evidence is newly discovered and could not have been presented in the exercise of reasonable diligence. It is also material.

As for Exhibits 94-104, they are a correction of Exhibit 88 which the court judicially noticed as part of FTC’s reply at trial, and which purported to be a hyperlinked list of the initiating motions for 21 of the 22 projects cited by the City in its opposition. The City now offers Exhibits 94-104 to show that the list in Exhibit 88 (also Exhibit 94) is not what FTC claims because at least ten of the 21 documents it lists are not motions that initiate a homeless shelter. The City also asks that the court retroactively deny judicial notice of Exhibit 88 and enter a new judgment to that effect. Opp. at 14-15.

FTC replies that the City failed to object to Exhibit 88 at trial and has waived its objection. Reply at 14. FTC is incorrect. The City objected to Exhibit 88 at trial on grounds that it is improper reply evidence and irrelevant. City’s November 4, 2024 Objections, pp. 14-15. In any event, the court should receive this new evidence as correcting Exhibit 88, both under the new trial standard and under the rule of completeness.

Thus, FTC’s written objections are overruled, and the City’s evidence is received for purposes of the new trial issue only. The court declines to vacate and correct the judgment by retroactively denying judicial notice for Exhibit 88.

Matters are presented to the City Council for vote in a variety of ways. The most common starts when a proposed action is received by the City Clerk’s Office and is entered into the City’s computerized City Council File system, at which time it is assigned a Council File Number. Keotahian Decl., ¶3. Numerous City offices present matters for input into the Council File System, including City Council offices, the Mayor’s Office, the City Attorney’s Office, and any City department such as BOE, CAO, or a board. Keotahian Decl., ¶3. The City Council has never required that a motion be made by a subset of City Council members before a matter may be presented for consideration to a City Council Committee. Keotahian Decl., ¶3. The City does not have a definition of the term “initiating motion” or any City rules, laws, or regulations that use the phrase. Keotahian Decl., ¶3.

Once a matter is entered into the Council File system, either the City Clerk’s Office or the Council President’s Office assigns the matter for review and recommended action to one of the City Council Committees. Keotahian Decl., ¶4. The City Council President also directs a small number of matters be sent directly to the full City Council without first being considered by a Council Committee. Keotahian Decl., ¶4.

Standing City Council Committees consist of up to five City Councilmembers, which is below a quorum of the 15-member City Council. Keotahian Decl., ¶5. After holding hearings on a matter, Council Committees recommend action on an item presented. Keotahian Decl., ¶5. Council Committee members nay vote to recommend that the full City Council adopt or approve an item. Keotahian Decl., ¶5. When they do so, the Council Committee prepares a report with recommended action to be voted upon by the full City Council. Keotahian Decl., ¶5. Such a report and recommendation has always been, in effect, considered no different than a motion – made by the up to five Councilmembers on the Committee who voted to make the recommendation -- for consideration by the full City Council. Keotahian Decl., ¶5.

The recommendation of a Council Committee for full Council action is stated on the City Council agenda for the meeting where the recommendation will be considered. It is also shown as the “Council Action” on the report of Official Action of the City Council created after the full City Council acts on the recommendation. Keotahian Decl., ¶4.[2]

An example of the procedure is shown by City records concerning the approval of the homeless shelter at issue. Keotahian Decl., ¶5. The Council File Log shows that the Council File number was assigned September 29, 2023, when the CAO submitted its September 29, 2023 report into the Council File System. Keotahian Decl., ¶6, Ex. A, Ex. 52. The report was then referred to the Housing and Homelessness Committee (“Homelessness Committee”). Ex. A. The BOE then submitted into the Council File System its September 29, 2023 report (Ex. 51), which was also referred to the Homelessness Committee on September 29, 2023. Keotahian Decl., ¶6.

Both the CAO and BOE reports were initially set for consideration by the Homelessness Committee on October 4, 2023. Keotahian Decl., ¶7. The Council File Log shows that any recommendation by the Homelessness Committee would be considered by the full Council on October 6, 2023 and that the five Councilmembers of the Committee approved both the CAO and BOE reports and acted together to present their recommended actions to the full City Council. Keotahian Decl., ¶7, Exs. A, 50.

On October 6, 2023, the City Council continued action on the Homelessness Committee’s recommendation and then adopted the recommendation of the five Committee Councilmembers on October 20, 2023. Keotahian Decl., ¶8. The City Council’s action was final on October 27, 2023, which is reflected in the document entitled, “Official Action of the Los Angeles City Council”. Keotahian Decl., ¶8, Ex. 49. The recommendation made by the five Councilmembers comprising the Homelessness Committee and adopted by the City Council is stated as the “Council Action” on the Official Action. Keotahian Decl., ¶8, Ex. 49.

The City’s MFC consists of the Mayor, the CAO, and the Chief Legislative Analyst. Tso Decl., ¶4. No City Councilperson is a member of the MFC. Tso Decl., ¶4.

Exhibit 94 is a copy of trial Exhibit 88, Exhibits 95-102 and 104 are documents from the hyperlinks in Exhibit 88, and Exhibit 105 is a copy of the City Council’s official action approving a report that the MFC consists of member from the Mayor’s Office, the CAO, and the Chief Legislative Analyst. Mahlowitz Decl., ¶¶ 5-17.

Petitioner FTC moves to vacate the judgment under CCP section 663 on the ground that there is an incorrect or erroneous legal basis for the decision, not consistent with or supported by the facts.[3] FTC raises three discrete issues.

“FTC argues that the City’s reliance on 22 other shelter approvals discredits its position. City Charter section 240 provides in relevant part: “All legislative power of the City except as otherwise provided in the Charter is vested in the Council,” which shall exercise that power “by ordinance, subject to the power of veto or approval by the Mayor” or “by order or resolution, not inconsistent with the duties and responsibilities set forth in the Charter or ordinance.” To exercise legislative power by an order, LAAC section 2.1.1 provides: “Other action of the Council may be by order or resolution, upon motion.” Exs. 83, 84.

The City suggests it approved the Midvale Project based on a City Council resolution, just like in those other 22 projects. But no such resolution exists for the Midvale Project. The City approved 21 of the 22 other projects on a motion. Ex. 88 (compilation of the motions). By contrast, no motion for the Midvale Project was presented. FTC concludes that the Project approval was unlawful under City Charter section 240 and LAAC section 2.1.1. Reply at 15.

At trial, the City’s counsel contended that FTC should have raised the issue that the Midvale Project lacks a motion for approval in its opening brief. Given that the City only clarified its reliance on section 12.80 authority for the first time at trial, the court declines to reject FTC’s argument on this basis. The City’s counsel also contended that the Project was properly presented to the City Council by the CAO and the BOE (Exs. 52, 55), the Housing and Homelessness Committee moved for the City Council to adopt certain recommendations (Ex. 50, 54), and the City Council then adopted the recommendations (Ex. 50). Although somewhat confusing, this evidence suffices to show compliance by motion under and LAAC section 2.1.1.”[4] Dec. at 18, n. 8 (emphasis added).

FTC argues that this ruling was erroneous because the undisputed facts show there was no motion for approval of the Midvale Project made to the City Council and no resulting order or resolution. LAAC section 2.1 provides: “All legislative power of the City except as otherwise provided in the Charter is vested in the Council and shall be exercised by ordinance…Other action of the Council may be by order or resolution, upon motion.” (emphasis added). Mot. at 9.

LAAC section 2.1 is consistent with City Charter section 240, which provides: “All legislative power of the City except as otherwise provided in the Charter is vested in the Council and shall be exercised by ordinance…Other action of the Council may be by order or resolution, not inconsistent with the duties and responsibilities set forth in the Charter or ordinance. (emphasis added). Mot. at 9-10.

FTC argues that City Charter section 240 and LAAC section 2.1 require the City Council to adopt an ordinance, order, or resolution made upon a motion. There was no motion made by or to the City Council to approve the Midvale Project, and the action that was taken did not result in an order or resolution. This was confirmed by the City Attorney at trial: “Well, I mean, they [the City Council] can’t act except pursuant to motion.” Silverstein Decl., Ex. 1, p. 25 (reporter’s transcript). The City Attorney also confirmed no motion was made to the committee: “THE COURT: So did someone make a motion to the committee? MR. MAHLOWITZ: No.” Ex. 1, p. 26. Mot. at 10.

The court erroneously ruled that, although somewhat confusing, the evidence in Exhibits 50, 52, 54, and 55 showed compliance by motion under LAAC section 2.1. Exhibit 50, the Homelessness Committee report, was neither a motion to the City Council nor an approval of an order or resolution for the Midvale Project. It was merely a recommendation for City Council action to approve the CAO and BOE reports for the Project and adopt BOE’s determination that it is exempt from CEQA. The only motion was the Homelessness Committee’s motion to approve the recommendation and forward it to the City Council. Exhibit 50 warned: “-NOT OFFICIAL UNTIL COUNCIL ACTS-”. Mot. at 11.

The power to legislate, or to make orders and resolutions, resides with the City Council as required by City Charter section 240 and LAAC section 2.1. As LAAC section 2.8 provides: “…Each Council committee shall, as such committee, have no administrative control over the various functions of the City government…but shall perform the duties of investigation for and recommendation to the Council in its work of legislation….” (emphasis added). The recommendation by the Homelessness Committee in Exhibit 50 was not an official act by the City Council. At best, it was a recommendation made by the Committee that still required a motion before the City Council. Mot. at 11-12.

Similarly, Exhibit 52 is a recommendation to the City Council by the CAO for “the approval of the design and construction of an interim housing site located at 2377 Midvale Avenue in Council District 5 for 33 beds”. Exhibit 54 is the “STATUTORY EXEMPTION and HOUSING AND HOMELESSNESS COMMITTEE REPORT relative to a construction, lease, and operation of residential interim housing/navigation centers at 600 East 116th Place and 503 San Fernando Road, and Tiny Home Villages at 7724 Van Nuys Boulevard and 8358 San Fernando Road, for those experiencing homelessness.” Exhibit 55 concerns a project for “bridge housing/navigation site located at 3248 Riverside Drive in Council District 4.” Mot. at 12-13.

The uncontroverted evidence proves violations of City Charter section 240 and LAAC section 2.1. No motion and no resolution or order was made for the Midvale Project, despite the fact that the City Council proceeded with motions and resolutions on the 22 other purported homeless shelter projects. Dec. at 18, n. 8. This failure renders the City Council action on the Midvale Project void. “Any act that is violative of or not in compliance with the charter is void. [Citation.]” Domar Electric, Inc. v. City of Los Angeles (1994) 9 Cal.4th 161, 171. Mot. at 13.

The City rebuts FTC’s argument by showing that a City Council motion and order or resolution is not required.[5] Both City Charter section 240 and LAAC section 2.1 provides that the City Council’s legislative power shall be exercised by ordinance and that other action of the Council may be by order or resolution, with LAAC section 2.1 adding the words “upon motion.” Taken together, these two City laws provide that except for adoption of an ordinance, the City Council may act by order which may (not must) be upon motion. Opp. at 12-13.

“It shall be the duty of each such committee to…report to the Council such information or recommendations concerning the business of such divisions as shall be necessary to enable the Council properly to legislate for such division. Each Council committee shall… perform the duties of investigation for and recommendation to the Council in its work of legislation….” RJN Ex. 91 (emphasis added).

City Council Rule 68 provides: “Committees shall report their findings and recommendations on matters referred to them to the Council.” RJN Ex. 92.

City Council Rule 69 discusses how the City Council acts on a Council Committee report:

“If the majority of the entire Committee has reached an agreement on a recommendation, they shall sign the Committee report. If a majority of the members of the entire Committee are not in agreement on a recommendation, they shall sign the report and it shall be noted that the report is submitted to the full Council without recommendation. Reports submitted without recommendation would require a Council motion to take an action on the file. A majority vote of Council would be required to approve the action recommended, unless a different vote is required by law.” (emphasis added).

Rule 69 demonstrates that, where there is no Committee majority report, the full City Council must propose and adopt its own motion to act on the matter. By implication, a majority Committee report requires no motion by the full City Council because the Committee report and recommendation function as the motion.

FTC replies that the City’s reliance on the “may be by” language in City Charter 240 and LAAC section 2.1 is misplaced. Both require that legislative acts be adopted by ordinance and that other actions be by order or resolution, upon motion. The City attempts to divorce “upon motion” from an “order”. But the rules of statutory construction do not so permit. “Under the ‘last antecedent rule’ of statutory construction, ‘[e]vidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma.’ [Citation.]” Lingenfelter v. County of Fresno (2007) 154 Cal.App.4th 198, 207-08 (quoting White v. County of Sacramento (1982) 31 Cal.3d 676, 680). Reply at 11-12.

Here, the comma precedes “upon motion” which means both antecedents -- i.e., orders and resolutions -- require motions. That motions are required is common sense. The City Council cannot act by committee only. “Each Council committee shall, as such committee, have no administrative control over the various functions of the City government”. LAAC § 2.8. A committee cannot decide that which is required to be decided by the City Council. The City Council must be presented with a motion to make its decision. City Council Rule 69 quoted by the City so confirms: “A majority vote of Council would be required to approve the action recommended [by a committee], unless a different vote is required by law.” There must be something to vote on, and that is a motion. Reply at 12.

FTC adds that the word “motion” is not a term of art. “To determine the common meaning, a court typically looks to dictionaries.” Consumer Advocacy Group, Inc. v. Exxon Mobil Corp. (2002) 104 Cal.App.4th 438, 444. The term “motion” is defined: “In parliamentary law, the formal mode in which a member submits a proposed measure or resolve for the consideration and action of the meeting.” Black’s Law Dictionary (5^th ed. 1979) p. 913. The City Attorney acknowledged at trial that the City Council cannot act to approve a project except through motion. Ex. 1, pp. 26-27. No evidence exists of a motion made to the City Council for the Midvale Project. Reply at 12.

FTC does not respond to the City’s point.[6] The City’s argument is that a motion must be made but it does not have to be made by a Councilmember directly at a City Council meeting. Rather, the motion to the City Council may be made by a majority of a Committee through its report and recommendation. That is what Rule 69 permits when it requires a report submitted without a committee recommendation to have a City Council motion before action may be taken. Where there is a majority committee vote and recommendation, it functions as a motion to the full City Council. Nothing in City Charter section 240 and LAAC section 2.1 states that the motion cannot be made to the City Council by a majority vote of a Council committee.

“Finally, FTC argues that the Project fails to comply with 25 CCR section 7950. Section 12.03 mandates compliance with Title 25, Division 1, Chapter 7 of the CCR. 25 CCR section 7950 is in Chapter 7 and provides: “‘Emergency shelter’ means housing with minimal supportive services for homeless persons that is limited to occupancy of six months or less by a homeless person and that is not withheld due to a client’s inability to pay.” (emphasis added). The Midvale Project violates 25 CCR section 7950 because: (1) the Midvale Shelter is a service-enriched shelter, not a minimal supportive services shelter, and (2) allows for longer than a six-month length of stay. Pet. Op. Br. at 15-16.

The City does not address this issue. The vague term ‘minimal supportive services’ may be a more restrictive term than the service-enriched shelter provided by the Midvale Project, although the City’s approval of 22 transitional shelters governed by section 12.03’s definition suggests otherwise. The court need not decide which is correct because the Midvale Shelter allows for a longer than six-month stay and therefore violates 25 CCR section 7950.” Dec. at 21 (emphasis added).

“Additionally, the City’s history of shelter ordinances shows its intent to develop of as many City transitional shelters as are allowed by Govt. Code section 8968.4 and that statute’s definition of ‘homeless shelter’…. This interpretation is supported by ED3’s subsequent clause “provided, however, that any temporary or permanent housing shall comply with applicable state law including Government Code Section 8698, et seq., to the extent those sections apply.” Dec. at 25 (emphasis added).

FTC concludes that the judgment is erroneous because the court found that only state law controls the Midvale Project and that the Project violates 25 CCR section 7950, which is state law. Mot. at 9.

This argument is a non-sequitur. The court found that the Project does not meet the definition of “emergency shelter” in 25 CCR section 7950 (use of the word “violates” was loose language). Consequently, the Project needed to be justified by some other authority. That authority is ED3, which requires only that the temporary housing comply with state law, including Govt. Code section 8698 et seq.. The court found that the Midvale Project does comply with state law. Dec. at 31.

As the City argues (Opp. at 8-9), the state’s Housing and Community Development Department (“HCD”) adopted 25 CCR section 7950 pursuant to the Legislature’s directive that the agency creates rules governing the “Emergency Housing and Assistance Program” (“EHAP”) (Health & Safety Code §50801). When HCD’s EHAP regulations use the term “emergency shelter”, 25 CCR section 7950 defines the term to mean “housing with minimal supportive services for homeless persons that is limited to occupancy of six months or less by a homeless person and that is not withheld due to a client's inability to pay.” (emphasis added).

FTC’s motion appears to contend that HCD’s EHAP rules govern the Midvale Project as a matter of HCD regulatory law. Not so. Although the City cannot set aside state law via a Mayoral ED, nothing shows the EHAP Program regulations adopted by HCD apply to the Midvale Project. LAMC section 12.03’s definition of the term “Shelter for the Homeless” is the only provision of law that applies 25 CCR section 7950 to any City homeless shelter. The court’s decision listed numerous laws FTC asserted as governing the Midvale Project, including 25 CCR section 7950 and found: “Of these statutes, only Govt. Code section 8698 et seq. is relevant to ED3….” Dec. at 31. FTC has not shown the Court’s construction of these laws was incorrect.

FTC replies that this argument ignores the word “including” in ED3’s language “‘provided, however, that any temporary or permanent housing shall comply with applicable state law including G overnment Code Section 8698, et seq., to the extent those sections apply.’” (emphasis added). “‘Courts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage.’” Big Creek Lumber Co. v. County of Santa Cruz, (2006) 38 Cal.4th 1139, 1155. ED3 requires more than compliance with Govt. Code section 8698 et seq; it requires compliance with all applicable state law. 25 CCR section 7950’s six-month limitation on stays must be applicable because ED3 requires compliance with state law and because the City defines “shelter for the homeless” in LAMC sections 12.80 and 12.03 within the meaning of Govt. Code §§ 8698 et seq., as a shelter in 25 CCR section 7950. Reply at 7.

This argument is apples and oranges. ED3 does not rely on LAMC section 12.03’s definition of “shelter for the homeless” and does not rely on the definition of “emergency shelter” in 25 CCR section 7950. It relies on the definition of “homeless shelter” in Govt. Code section 8698.4(c)(1). The definitions are different as the court found. Dec. at 31. As such, using the language of ED3, 25 CCR section 7950 “does not apply”.

“ED3 requires only state law -- particularly Govt. Code section 8698.4 and its required building standards in LAMC section 91.8605¹² -- as limits on qualifying homeless shelters.

¹²At trial, FTC’s counsel noted that LAMC section 91.8605.1 expressly refers to emergency shelters for the homeless “established pursuant to a declaration of a shelter crisis under Section 12.80 of the Los Angeles Municipal Code”. Ex. 43. FTC’s counsel suggested that ED3 could not both set aside section 12.80 and then rely on it in LAMC section 91.8605.1.

The City’s counsel correctly responded that the next provision, LAMC section 91.8605.2, states: “Notwithstanding any provisions of [the LAMC] to the contrary, the following requirements shall apply to emergency homeless shelters operated during a shelter crisis, as provided for in Government Code section 698, et seq.” Ex. 43. In other words, the building standards in LAMC section 91.8605 apply to the Midvale Project whether or not sections 12.80 and 12.03 do.” Dec. at 25, n.12.

FTC argues that the court’s decision that LAMC section 91.8605.2 stands alone for the approval of the Midvale Project because of the phrase “[n]otwithstanding any provisions of [the LAMC] to the contrary” is erroneous as a matter of law. Mot. at 14.

“The city, county, or city and county, in lieu of compliance with local building approval procedures or state housing, health, habitability, planning and zoning, or safety standards, procedures, and laws, may adopt by ordinance reasonable local standards and procedures for the design, site development, and operation of homeless shelters and the structures and facilities therein…. Upon the adoption of an ordinance, the city, county, or city and county shall file a copy of the adopted ordinance, and any associated findings, with the department.” (emphasis added).

The City complied with the requirement of Govt. Code section 8698.4 by adopting LAMC section 91.8605 et seq. Dec. at 12, 16, 25.

LAMC section 91.8605.1 provides: “The provisions and standards set forth in LAMC Subsection 91.8605.2 shall be applicable to any emergency shelter for the homeless which complies with and is approved pursuant to LAMC Section 12.80 or 12.81.” (emphasis added).

LAMC section 91.8605.2 provides in relevant part: “Notwithstanding any provisions of this Code to the contrary, the following requirements shall apply to emergency homeless shelters operated during a shelter crisis, as provided for in Government Code Section 8698, et seq…. (emphasis added).

From these provisions, FTC concludes that LAMC section 91.8605.1 is the means for approval of an emergency shelter for the homeless -- i.e., that such shelters must comply with and be approved pursuant to LAMC section 12.80. LAMC section 91.8605.2 is the means for operation and construction standards for shelters for the homeless. Once approved, shelters are operated and constructed pursuant to LAMC section 91.8605.2. Mot. at 14; Reply at 8.

LAMC section 91.8605.2’s prefatory phrase “notwithstanding any provisions of this Code to the contrary” means only those provisions of the LAMC that conflict with LAMC section 91.8605.2 and not every provision in the LAMC. People v. Fuentes (2016) 1 Cal.5th 218, 227; Arias v. Superior Court, (2009) 46 Cal.4th 969, 983 (“by virtue of subdivision (a)’s ‘notwithstanding’ clause, only those provisions of law that conflict with the act’s provisions – not, as defendants contend, every provision of law – are inapplicable to actions brought under the act.”). LAMC section 91.8605.1 and LAMC section 91.8605.2 do not conflict and in fact are symbiotic. Read together, LAMC section 91.8065.1 allows for the approval of a project pursuant to LAMC section 12.80 to be constructed and operated without strict adherence to the building codes as set forth in LAMC section 91.8605.2. Mot. at 15.

FTC argues that LAMC section 91.8605.1 is mandatory, as established by LAMC section 11.01: “(a) The following words and phrases whenever used in this Code shall be construed as defined in this section unless from the context a different meaning is intended, or unless a different meaning is specifically defined and more particularly directed to the use of such words or phrases: … ‘Shall’ is mandatory; ‘May’ is permissive.” “‘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. Reply at 8.

FTC contends that the Midvale Project could only be approved pursuant to LAMC section 91.8065.1, which requires compliance with LAMC section 12.80. But the court’s decision states: “ED3 reasonably could set aside section 12.80 (and section 12.03) because ED3 is a separate authority for the Midvale Shelter.” Dec. at 23. That ruling is erroneous as a matter of law based on LAMC section 91.8605.1. Mot. at 16.

FTC argues that Govt. Code section 8698.4 does not by its terms allow for the approval of a shelter for the homeless. Rather, it allows for suspension of discretionary review and modified building standards upon the declaration of a homeless shelter crisis. In the words of the City Attorney regarding the adoption of amended LAMC § 91.8605:

“Government Code Section 8698.4 exempts the City from complying with certain state and local regulations, to the extent that these laws hinder or delay the City’s ability to mitigate the shelter crisis, so long as the City adopts, by ordinance, reasonable standards and procedures for the design, site development, and operation of homeless shelters. Gov. Code Section 8694(a)(2)(A)(i).” Ex. 43, p. 127 (emphasis added). Reply at 8-9.

FTC adds that Govt. Code section 8698.4 is not an independent means for the approval of the Midvale Project, and the court did not so hold. Rather, the court ruled that ED3 is separate authority for the approval of the Project. Dec. at 23, 25. However, ED3 provides no authority for the approval of the Midvale Project. Ex. 19. There are no provisions in ED3 allowing the approval of any project. Ex. 48. The Mayor issued ED3 pursuant to LAMC section 8.33, which allows the Mayor to declare a homeless and housing shortage emergency. Ex. 48. LAMC section 8.33 cannot stand as separate authority for the approval and construction of the Midvale Project. The only City authority for the approval of shelters for the homeless are LAMC sections 12.80 and 91.8605 et seq. The approval of the Project had to, but did not, proceed pursuant to the terms of LAMC section 91.8605.1 and therefore pursuant to LAMC section 12.80. Since LAMC § 12.03 is specifically incorporated into LAMC section 12.80, and the court ruled that the Project does not comply with LAMC section 12.03 because it does not meet the six-month limitation on a “shelter for the homeless” (Dec., p. 19), judgment should be entered for FTC. Mot. at 16-17; Reply at 10.

Contrary to FTC’s argument, nothing in LAMC section 91.8605.2 requires application of LAMC section 91.8605.1 at the same time. As the City argues (Opp. at 10), the two provisions may operate together (symbiotically as FTC contends) or independently. If the latter, LAMC section 91.8605.2 expressly applies to a shelter project governed by Govt. Code section 8698.4 and does not incorporate LAMC section 12.80.

Although FTC contends that the Midvale Project cannot be authorized without LAMC section 91.8605.1, that is not the case. Govt. Code section 8698.4(a)(2)(A)(ii) provides that any housing, health, habitability, planning and zoning, or safety standards, procedures, or laws shall be suspended for homeless shelters during a shelter crisis, provided only that the city…has adopted health and safety standards and procedures for homeless shelters. The only requirement is that the City have homeless shelter standards and procedures, which it does in LAMC section 91.8605.2. There is no requirement in Govt. Code section 8698.4(a)(2)(A)(ii) that the City have an authorization ordinance like LAMC section 91.8605.1.

Moreover, the court found at trial that the City’s history of shelter ordinances shows its intent to develop as many City transitional shelters as are allowed by Govt. Code section 8968.4 and that statute’s definition of “homeless shelter.” The Mayor’s purpose in issuing ED3 was intended to reflect this broad purpose. ED3 requires only state law -- particularly Govt. Code section 8698.4 and its required building standards in LAMC section 91.8605 -- as limits on qualifying homeless shelters. Dec. at 25. Therefore, it is not fair or accurate to state that ED3 does not authorize homeless shelters. It does so in conjunction with Govt. Code section 8698.4.

[1]The City requests judicial notice of the following: (1) a copy of City Charter section 241 stating that the City Council consists of 15 members (Ex. 90); (2) Los Angeles Administrative Code (“LAAC”) section 2.8 describing the roles of City Council committees (Ex. 91); (3) the City Council Rules (Ex. 92); (4) a copy of Solana Beach Municipal Code section 2.04.400, which includes a definition of the word “motion” (Ex. 93); and (5) an April 22, 2020 City Council Official Action Stating the Members of the City’s Municipal facilities Committee (“MFC”) (Ex. 105). FTC objects only to Exhibit 105 as new evidence inadmissible for a new trial or this motion. Missionary Guadalupanas of Holy Spirit, Inc. v. Rouillard, (2019) 38 Cal.App.5^th 421, 438. The requests are granted for Exhibits 90-93. Evid. Code §452(b). Exhibit 105 is part of the City’s new evidence addressed post.

[2] The paragraph numbering in the Keotahian declaration restarts at 4.

[3] On January 7, 2025, the court entered judgment in the City’s favor and the clerk mailed notice of entry of judgment. The motion is timely and the court’s power to rule on the motion has not expired. See CCP §663a(b).

[4] The City points out that the citation should have been “2.1”. Opp. at 12, n. 1.

[5] The City corrects the court’s reliance on Exhibits 50, 52, 54, and 55 as the record of City Council approval; the correct record is Exhibits 49 through 52. Opp. at 12, n. 2.

[6] City Charter section 240 and LAAC section 2.1 differ -- LAAC section 2.1 provides that “[o]ther action of the Council may be by order or resolution, upon motion.” (emphasis added) and City Charter section 240 does not have the “, upon motion” language. However, this difference does not appear to be material.

[7] The City argues that, even if FTC were correct, at most it would be entitled to a new trial based on insufficient evidence that a City Council motion had been made to approve the Project. FTC never asserted this argument before its reply and evidence therefore is missing of the City Council’s standard legislative practices pursuant to its City Charter and LAAC. The Midvale Project legislative approval process involved public meetings before several public bodies, most of which were not in evidence. Despite now challenging the City Council’s legislative processes, FTC introduced no trial evidence of the agenda, minutes/journals, actions, or meeting transcripts of any of these hearings, not even the record of the City Council’s vote approving the Midvale Project. Opp. at 17.

Because FTC did not argue before its trial reply brief that the City Council failed to approve the Project via motion, the City had no need to offer further evidence documenting and explaining its legislature procedures. If, as FTC asserts, the meaning of the term “motion” in LAAC 2.1 is not clear on its face, the City should be entitled to present evidence of its procedures and practices such as the declaration of retired (now volunteer) Assistant Chief Legislative Officer Avak Keotahian. Opp. at 18-19.

Because the City Charter section 240, LAAC 2.1, and Rule 69 are interpreted as the City contends, the court need not address this issue.