Judge: James C. Chalfant, Case: 24STCP01469, Date: 2024-06-04 Tentative Ruling

Case Number: 24STCP01469    Hearing Date: June 4, 2024    Dept: 85

Petitioners/Plaintiffs Brinah Milstein, acting as an individual and as Trustee of the Glory of the Snow 1031 Trust, a California Trust, and Roy Bank (sometimes, “Owners”) seek a preliminary injunction enjoining Respondent/Defendant City of Los Angeles (“City”) from furthering the Historic Cultural Monument process initiated for their property located at 12305 5th Helena Drive Los Angeles, California (the “Property”).

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

A. Statement of the Case

1. Petition

Petitioners filed the Petition/Complaint on May 6, 2024, alleging eight causes of action for mandamus under CCP sections 1085 and 1094.5, violation of substantive and procedural due process, and declaratory relief.  The Complaint/Petition alleges in pertinent part as follows.

Petitioners own the Property.  Pet. ¶18.  They bought the Property in July 2023 and were issued demolition and grading permits (“Permits”) by the City. Pet. ¶2. The Permits were held for 30 days pursuant to LAMC section 91.106.4.5.1 to allow “preservation” objections, but none were made.  Pet. ¶2. 

As a result, Petitioners were entitled to use the validly issued Permits.  They relied on the Permits by incurring over $30,000 in expenses before receiving notice of the illegal stay invoked by the City.  Pet. ¶2.  On September 6 and 7, 2023, City staff and third parties invalidated the issued permits.  Pet. ¶3.

On September 8, 2023, the City initiated the “Historic Cultural Monument” process for the Property which was initiated in violation of the Brown Act and City Council Rule 23, relying on a patently unconstitutional ordinance (LAMC section 22.171.12) to stay Owners’ vested rights without any evidence to support the Historic Cultural Monument designation and without any notice or opportunity to be heard by Owners in violation of their due process rights.  Pet. ¶3. 

The City compounded the illegality of its motion and resulting stay of the Permits by violating the requirements of the Los Angeles Administrative Code (“LAAC”).  Pet. ¶4.  The motion should have directed the Cultural Heritage Commission (“Commission”) to investigate the Property’s status as required by LAAC section 22.171.10 but instead directed the Planning Department to prepare an application for nomination as a Historic Cultural Monument.  Pet. ¶4.

The Planning Department, City Councilmember Traci Park, and non-profit Los Angeles Conservancy have attempted to rig the process to nominate and designate the house on the Property as a Historic Cultural Monument.  Pet. ¶6. Both Los Angeles Conservancy and Hollywood Heritage advocated for designation of the Property before and as part of the nomination process.  Pet. ¶5.  The Planning Department arranged for a biased third party, Heather Goers (“Goers”), who is affiliated with the Los Angeles Conservancy and Hollywood Heritage, to prepare the nomination documents.  Pet. ¶5.  Petitioners are informed and believe that Goers did not have a contract with the City and acted without legal authority.  Pet. ¶¶ 5-6.  The City delegated the nomination preparation to Goers to ensure the desired outcome rather than using unbiased historic consultants under contract with the City, and this biased process corrupted the nomination process.  Pet. ¶¶ 7-8.  

Councilmember Park and her staff demonstrated bias throughout the process which compromised the required fair and impartial process.  Pet. ¶10.  Councilmember Park held a press conference advocating for designation of the Property as a Historic Cultural Monument before bringing her motion to the City Council at which she misrepresented details about the Property’s home to support her position.  Pet. ¶11.  Park admitted the vested nature of Owners’ Permits and stated that she and her staff had been working around the clock to find a way to revoke them.  Pet. ¶¶ 11-12.  Park continued her advocacy in a staged TikTok video after the motion was adopted by the City Council.  Pet. ¶13.

The biased nomination process then was rubber-stamped through hearings before the Commission and the City Council’s Planning and Land Use Management Committee (“PLUM”), ignoring the applicable criteria for Historic Cultural Monument designation.  Pet. ¶9.

Virtually every neighborhood group in the area opposes designation of the residence as a Historic Cultural Monument.  Pet. ¶16.  The City has ignored this opposition and announced its intent to continue its actions on April 2, 2024.  The City’s failure to respond to Petitioners’ efforts to resolve the dispute necessitated the filing of this Petition/Complaint to prevent further irreparable harm.  Pet. ¶14.  Petitioners have exhausted all required efforts to object to the designation and seek a remedy, making further efforts futile.  Pet. ¶17.

For the first, second, third and fourth causes of action, Petitioners seek issuance of a writ of mandate and a preliminary injunction compelling Respondent City to comply with its ministerial duties and halt all further efforts to deprive Petitioners of their vested rights.  Prayer, ¶1.  For the fifth, sixth and seventh causes of action, Petitioners seek preliminary and permanent injunctive relief stopping the City from furthering the Historic Cultural Monument designation process initiated in violation of law and mandating restoration of the Permits.  Prayer, ¶2.  For the eighth cause of action, Petitioners seek a declaration of their rights with respect to the Historic Cultural Monument designation issue.  Prayer, ¶3.  Petitioners also seek costs of suit and, if available, attorney’s fees.  Prayer, ¶4.

B. Applicable Law

An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court.  CCP §525.  An injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act.  See Comfort v. Comfort, (1941) 17 Cal.2d 736, 741. McDowell v. Watson, (1997) 59 Cal.App.4th 1155, 1160.[1]  It is an equitable remedy available generally in the protection or to prevent the invasion of a legal right.  Meridian, Ltd. v. City and County of San Francisco, et al., (1939) 13 Cal.2d 424.

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial.  See Scaringe v. J.C.C. Enterprises, Inc., (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp., (1992) 11 Cal.App.4th 1313, 1316; Major v. Miraverde Homeowners Assn., (1992) 7 Cal.App.4th 618, 623.  The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy.  Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court, (1916) 172 Cal. 80, 87. 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402.

A preliminary injunction is issued after hearing on a noticed motion.  The complaint normally must plead injunctive relief.  CCP §526(a)(1)-(2).[2]  Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief.  See e.g. Ancora-Citronelle Corp. v. Green, (1974) 41 Cal.App.3d 146, 150.  Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts.  See CCP §527(a).  For this reason, a pleading alone rarely suffices.  Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007).  The burden of proof is on the plaintiff as moving party.  O’Connell v. Superior Court, (2006) 141 Cal.App.4th 1452, 1481.

A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law.  CCP §526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors, (1967) 255 Cal.App.2d 300, 307; Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.  The concept of “inadequacy of the legal remedy” or “inadequacy of damages” dates from the time of the early courts of chancery, the idea being that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff.  Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.

In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and (2) a balancing of the “irreparable harm” that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction.  CCP §526(a)(2); 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402; Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1283; Davenport v. Blue Cross of California, (1997) 52 Cal.App.4th 435, 446; Abrams v. St. Johns Hospital, (1994) 25 Cal.App.4th 628, 636.  Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief.  Doe v. Wilson, (1997) 57 Cal.App.4th 296, 304.  The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.  Thornton v. Carlson, (1992) 4 Cal.App.4th 1249, 1255.

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction.  See CCP §529(a); City of South San Francisco v. Cypress Lawn Cemetery Assn., (1992) 11 Cal.App.4th 916, 920.

C. Governing Law

The City Council, the Commission, or the Planning Department Director may initiate consideration of a proposed Historic Monument designation.  Any initiation by the City Council or Commission shall be by majority vote.  The City Council or the Commission shall forward the proposed designation to the Director for a report and recommendation.  LAAC §22.171.10(a).

Any interested individual may apply for a proposed designation of a site, building, or structure as an Historical Monument.[3]  The applicant shall complete the application for the proposed designation on a form provided by the Planning Department, include all information required, pay the required fee, and file the application with the Planning Department.  LAAC §22.171.10(b).

Upon receipt of a proposed designation initiated by the City Council, the Commission[4] shall, pursuant to LAAC section 22.171.8, inspect and investigate the proposed designation.  LAAC §22.171.10(c)(2).  As part of this inspection and investigation, the Commission or staff shall, inter alia, tour or review photographic/videographic records of the site and solicit opinions and information from the office of the Council District in which the site is located and from any City department or bureau whose operations may be affected by designation of the site.  LAAC §22.171.8. The Director shall thereafter prepare a report and recommendation on the proposed designation.  LAAC §22.171.10(c)(2).  After receipt of the Director’s report, the Commission shall determine at a public meeting whether the site, building, or structure conforms with the definition of a Historic Monument.  LAAC §22.171.10(c)(2).  The Commission shall submit a report and recommendation to the City Council.  If the Commission recommends approval, the City Council may adopt the designation by a majority vote.  LAAC §22.171.10(c)(2).  If the Commission recommends disapproval, the City Council may adopt the proposed designation by a two-thirds vote.  Id.  The City Council shall act within the time specified in LAAC section 22.171.10(f).

            Written notice must be given to the property owner[5] and owner’s representative for the City Council’s initiation of a proposed designation and a temporary stay issued pursuant to LAAC section 22.171.22.  LAAC §22.171.10(d)(1).  The property owner and representative shall be notified of the time, place, and purpose of the public hearing on the Commission’s action for the proposed designation, given at least ten days before the hearing (LAAC §22.171.10(d)(4)), and also for the public hearing on the City Council’s action on the proposed designation, given at least ten days before the hearing.  LAAC §22.171.10(d)(4).  The written notice must be sent via certified mail, return receipt requested.  Ibid. 

             The City Council may approve or disapprove in whole or in part an application or initiation for a proposed designation of a Historic Monument.  The City Council shall act within 90 days of the public hearing held before the Commission on the proposed designation. The City Council may unilaterally extend the 90-day time limit to act for a maximum of 15 days for good cause.  With written consent of the owner, the time for the City Council to act may be extended by up to an additional 60 days. If the City Council does not act on the application or initiation within the specified time limit, the application or initiation to designate a Historic Monument shall be deemed to have been denied. The City Council may override a Commission recommendation to deny a City Council-initiated designation by a minimum of ten votes.  LAAC §22.171.10(f).

Upon the filing of an application for a Historical Monument, the Director or his or her designee shall determine whether the application is complete and warrants further investigation by the Commission.  LAAC §22.171.12.  Upon such determination, or upon initiation by the City Council, the Commission, or Director, no permit for the demolition, substantial alteration, or removal shall be issued, and the site, building, or structure, shall not be demolished, substantially altered, or removed pending final determination by the Commission and City Council whether it shall be designated as a Historic Monument.  Id.  If, after the expiration of the final period to act in section 22.171.10(f) the City Council has not acted to designate a Historic Monument, the demolition, alteration, or removal of the site, building, or structure may proceed.  Id.

            Once designated as a Historical Monument, no permit for the demolition, substantial alteration, or relocation of the Historical Monument shall issue without review by the Commission.  LAAC §22.171.14.  The Commission must evaluate whether a substantial alteration “protects and preserves the historic and architectural qualities and the physical characteristics that make the site, building, or structure a designated Monument.”  LAAC §22.171.14(a)(2).

            The Los Angeles Department of Building and Safety (“LADBS”) shall not issue a building permit for demolition of a building or structure where the original building permit was issued more than 45 years prior to the date of application for demolition pre-inspection, or where information submitted with the application indicates the building or structure is more than 45 years old, without having sent written notices of the demolition pre-inspection application by mail to abutting property owners and the Council District Office for the site at  least 30 days prior to issuance of the demolition permit or structure permit.  LAMC §91.106.4.5.1.

C. Statement of Facts[6]

1. Petitioners’ Evidence

In mid-2023, Petitioners purchased the Property, which is adjacent to their existing home, with the intention of combining the properties.  Bank Decl., ¶3.  This required the demolition of some or all of the aged structures and other dilapidated improvements.  Bank Decl., ¶3. The house on the Property has had 14 owners since Marilyn Monroe’s death in 1962, with over 30 building permits issued for various remodels.  Sheridan Decl., ¶5, Ex. 30.  No physical evidence remains that Monroe ever lived there; no furniture, paint, carpet, or other items from her time remain. Bank Decl., ¶ 3. Courts have determined that the home was not her legal residence. Sheridan Decl., Ex. 53.

Petitioners submitted an application for a demolition permit for the Property on July 31, 2023, and a Notice of Demolition placard was conspicuously placed at the Property on the same day.  Bank Decl., ¶4, Ex. 1.  Petitioners are informed and believe that a Notice of Proposed Demolition was also mailed by the City to CD-11, the City Council Office for Councilmember Park and adjoining property owners.  Bank Decl., ¶4, Ex. 2.  Following the posting and mailing of the Notice of Demolition, Owners never received any notice or objection from any person or entity during the 30-day period from July 31, 2023 to August 31, 2023.  Bank Decl., ¶4.

Between July 11 and September 8, 2023, Petitioner Bank caused, or committed to, payments totaling over $20,000 to consultants, contractors, and other third parties in anticipation of the City issuing the Permits, including the following: (a) payment of $3,000 for consulting services between July 11 and August 28, 2023 by Wayne Moss Constructors, Inc. regarding demolition of the Property, which Bank paid on September 5, 2023 (Ex. 3); (b) payment of $1,550 to T&T Environmental (“TTE”) to prepare an asbestos survey and report in connection with the Property, which TTE furnished on August 16, 2023 (Ex. 4); (c) payment of $2,708.39 to SoCalGas for invoice dated August 28, 2023 pursuant to an agreement that SoCalGas would abandon gas lines at the Property (Ex. 5); d) payment of $3,199.22 on September 20, 2023 to permitting consultant Jason Ungar for preparing the applications for and processing the Permits  between July 29 and September 7, 2023 (Ex. 6); (e) payment of $1100 to J&J Environmental to perform asbestos abatement at the Property completed on September 1, 2023 (Ex. 7); (f) payment of $269.25 to The Best Demolition & Recycling Co. for costs incurred on September 8, 2023 associated with Los Angeles Air Quality Management District’s notification fees (Ex 8); and (g) a $11,000 retainer for T Engineering to provide civil engineering services (Ex.  9). Bank Decl., ¶6.

On September 7, 2023, the City issued the Permits.  Bank Decl., ¶7, Exs. 10-11.  The Permits were put on a 30-day hold, as required by LAMC section 91.106.4.5.1 for properties over 45 years old, allowing time for any preservation objections. Sheridan Decl., ¶ 4, Ex. 32. No objections were raised during this period, which expired on August 31, 2023.  Bank Decl., ¶ 5.

After the 30-day hold expired, a third-party letter from a conservancy group was submitted to Councilmember Park's office on September 6, 2023, prompting rapid action to invalidate the permits and prepare a historic designation nomination.  Sheridan Decl., ¶ 4, Ex. R.  

Bank did not receive any advance notice of the City Council’s September 8, 2023 motion to initiate consideration of the Property as a proposed Historical Cultural Monument.  Bank Decl., ¶9.  He only received the formal notice from the City in the mail between ten days to two weeks or more after September 8, 2023.  Banks Decl., ¶10.  Bank received the notice even though no person or entity objected to the demolition within 30 days after the demolition notice was both placed at the Property and mailed, after the City issued the Permits, and after he caused or committed to payments totaling in excess of $20,000 to consultants, contractors, and other third parties.  Bank Decl., ¶11.

Bank is informed and believes that LADBS, or an agent acting on its behalf, affixed a Notice to Stop Construction to a gate outside of the Property on an unknown date.  Bank Decl., ¶10.  During this period, there was a media frenzy outside of the Property making it unsafe for Bank or his family to enter or exit through the gate where the Notice was posted.  Bank Decl., ¶10.  He discovered the posted Notice of Stay sometime later when his family was able to go outside in the pre-dawn hours.  Bank Decl., ¶10.  During that period, they could not even comfortably go into the backyard of the Property because of the constant drones and helicopters flying over the Property and disrupting their children. Bank Decl., ¶10. The City later issued and mailed a corrected notice on September 14, 2023. Sheridan Decl., ¶ 2, Ex. 30; Bank Decl., ¶10, Ex. 12.

The nomination process was improperly handled by a biased third party, Goers, arranged by the Los Angeles Conservancy and others advocating for the designation. Sheridan Decl., Ex. 43. Goers, a board member of Hollywood Heritage, prepared the nomination without proper authority and despite her known bias.  Sheridan Decl., Ex. 38, Ex. 44. The Planning Department’s report to the Commission relied entirely on this biased nomination. Sheridan Decl., Ex. 47. Councilmember Park publicly supported the designation, stating on April 3, 2024, that she could not imagine any home in Los Angeles more worthy of the designation.  Sheridan Decl., Ex. 50.

After the City efforts to designate the Property as a Historic Cultural Monument began, and to a much greater extent than before, the small street where the Property is located (5th Helena) and the surrounding area has become an unwanted tourist attraction, endangering the safety and peace and quiet of the community.  Bank Decl., ¶12.  5th Helena is only 16 feet across at is widest and barely 200 feet long, allowing virtually no room for parking of cars of trucks anywhere along its length.  Bank Decl., ¶12.

Bank has witnessed people trying to enter the Property without permission (by scaling the wall and gate), and they have flown drones over it.  Bank Decl., ¶13.  On April 14, 2024, a tour bus stopped at the intersection of Carmelina and 5th Helena to observe the Property, obstructing access to and from the narrow street leading to the Property. Bank Decl., ¶14, Ex. 13. 

Many people have parked their cars directly in front of the Property and stood on their cars to try to look over the gate into the private Property, and several recently boosted each other up onto and over the wall, requiring Bank’s family to call the police yet again. Bank Decl., ¶15, Ex. 14.  An unidentified person, whose car was parked directly in front of the Property, reached into the Property’s mailbox.  Bank Decl., ¶16, Ex. 15.  Another unidentified person stood directly in front of the security camera to display their Marilyn Monroe jacket.  Bank Decl., ¶17, Ex. 16. 

People have regularly treated the Property as a place to film for their websites and social media. Two unidentified persons placed a Marilyn Monroe cardboard cutout at Bank’s gate to take pictures and film.  Bank Decl., ¶20, Ex. 18. 

Recently, on April 8, 2024, at approximately 7:00 a.m., an unidentified person walked up the cul-de-sac to the Property gate. The person displayed erratic movements, waived whips violently towards the Property, and could be seen carrying a very large weapon resembling a knife.  Bank Decl., ¶18, Ex. 17.  Bank’s family called the police, but they did not arrive timely enough to intercept the individual.  Id.  The same person returned to the Property around 8:30 p.m. on April 8, 2024, and Bank’s family called the police again.  Bank Decl., ¶19.  Police officers were able to intercept the person and asked him to move along from the Property. Unfortunately, he returned to the Property around 3 :00 a.m., trying to open doorknobs on property gates before eventually leaving again.  Bank Decl., ¶19.

The City's designation efforts have prompted persons to send threats and malicious statements to Bank’s family via mail and social media.  Bank Decl., ¶21.  Local neighborhood groups have submitted letters opposing designation of the Property as a Historical Cultural Monument, among them the Brentwood Community Council (representing 36,000 stakeholders) and various homeowners associations. Bank Decl., ¶22, Ex. 19.

Bank and his wife cannot even begin to estimate their damage if the City's intended designation of the Property goes through. We will be mired in the heavy burden of owning, perpetually, a tourist magnet creating a circus atmosphere harmful to us and our neighbors.  Bank Decl., ¶23.

The PLUM Committee held a hearing and voted on March 5, 2024, to recommend the designation to the City Council. Sheridan Decl., Ex. 51. Before the City Council could make a final decision, Petitioners requested and received an extension, making June 16, 2024, the last day for City Council to act on the designation.  Sheridan Decl., Ex. 52.  The City Council has until June 16, 2024, to make a final decision on the Historic Cultural Monument designation. Sheridan Decl., Ex. 51.

2. City’s Evidence

On September 8, 2023, Councilmember Park, representing Council District 11, moved pursuant to Rule 23 of the City Council Rules for immediate action to consider the Property as a Historic Monument. Burman Decl., ¶5.  The motion identified the Property as “the only residence owned by actress Marilyn Monroe” and noted that the demolition permit had been issued on September 7, 2023.  Pet. RJN Ex. 41.

The City Council unanimously approved the motion, initiating the City’s process for the proposed designation of the Property as a Historic Cultural Monument. Opp. RJN, Ex. E. That same day, under LAAC section 22.171.12, the City issued a temporary stay of the Permits and LADBS posted notice of the stay on the Property’s gate. Opp. RJN, Ex. D.

The Commission sought to tour the Property as required by LAAC section 22.171.8, but the tour was delayed until January 11 and 12, 2024 due to scheduling conflicts with Petitioners. Opp. RJN, Ex. C.

On January 18, 2024, the Commission held a public hearing on the proposed designation.  Ex. C,  Prior to the hearing, the Planning Department’s Office of Historic Resources prepared a staff report recommending that the Commission endorse the Historic Monument designation to the City Council.  Jones Decl., ¶¶ 2-4.

3. Reply Evidence

Exhibit 55 is a report by the "Los Angeles Historic Resources Inventory" identifying the evaluation of the Property for a Survey LA report. Reply Sheridan Decl., ¶2, Ex. 55, p. 2.

Exhibit 56 is an October 2017 publication, "Survey LA-- Los Angeles Historic Resources Survey", prepared for the Planning Department’s Office of Historic Resources.  The publication references the house on the Property as owned for a short time by Marilyn Monroe.  Reply Sheridan Decl., ¶3, Ex. 56, p. 21.[7]

Exhibit 58 is a letter dated July 31, 2023 from LADBS to Council District 11 providing "Notice of Proposed Demolition" at the Property as required by LAMC 91.106.4.5.1.  Reply Sheridan Decl., ¶5, Ex. 58.

Exhibit 59 is an email dated September  5, 2023 from Mary Jacob at the New York Post to ladbs-media@lacity.org regarding the application process for demolition at the Property.  As part of the same email string, Gail Gaddi, LADBS’ Public Information Director for LADBS, acknowledged receipt of this email.  Exhibit 59 reflects the national media attention on the house.  Reply Sheridan Decl., ¶6, Ex. 59.

Exhibit 60 is an email dated September 7, 2023 from John Weight, Executive Officer of LADBS to Star Parsamyan, Chief of Staff to Councilmember Park, stating that the 30-day hold period had expired as of September 7, 2023.  Reply Sheridan Decl., ¶7, Ex. 60.

D. Analysis

Petitioners seek a preliminary injunction precluding the City from moving forward with the Historic Cultural Monument designation process for a home which they own and in which Marilyn Monroe lived for a short time. 

1. Availability of a Preliminary Injunction

Petitioners seek to prevent the City from moving forward with the Historic Monument process.  An injunction is not available to prevent the execution of a public statute by officers of the law for the public benefit.  See Szold v. Medical Board, (2005) 127 Cal.App.4th 591, 596.  The prohibition also does not apply if (1) the statute is unconstitutional on its face or as applied, or (2) the public official’s actions exceed his or her authority.  See Conover v. Hall, (1974) 11 Cal.3d 842, 850.  A preliminary injunction prohibiting enforcement of a valid ordinance on the ground that it was unconstitutionally applied to the plaintiff should rarely be granted.  Xiloj-Itzep v. City of Agoura Hills, (1994) 24 Cal.App.4th 620, 636.  Moreover, any available administrative remedy must be exhausted before the statute is challenged, even on constitutional grounds.  Board of Police Commissioners v. Superior Court, (1985) 168 Cal.App.3d 420, 431-32. 

Petitioners argue that they have vested rights and the City’s stay of the Permits violates due process, as well as that the City failed to follow the required process.  These are matters for which they properly can seek to enjoin the City.  Petitioners also argue that Councilmember Park has exhibited unacceptable bias (Mot. at 19-20), but this is not an issue for which the City can be enjoined in a preliminary injunction.  See post.

2. Balancing of Irreparable Harms

In determining whether to issue a preliminary injunction, the plaintiff must make some showing of each of the two factors of (1) a reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and  (2) a balancing of the “irreparable harm” that the plaintiff is likely to sustain if the injunction is denied compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. CCP §526(a)(2); Jessen v. Keystone Savings & Loan Assn., (1983) 142 Cal.App.3d 454, 459. 

“Irreparable harm” means that the defendant’s act constitutes an actual or threatened injury to the personal or property rights of the plaintiff that cannot be compensated by a damages award.  Brownfield v. Daniel Freeman Marina Hospital, (1989) 208 Cal..App.3d 405, 410.  The showing must demonstrate the specific harm claimed; mere allegations of irreparable injury are insufficient.  Leach v. City of San Marcos, (1989) 213 Cal.App.3d 648, 661.  Conclusory statements, lay opinion, and attorney declarations will not suffice.  Preliminary injunctions are often denied on this ground.  The irreparable harm must be imminent; a mere possibility or fear of harm is insufficient.  Korean Philadelphia Presbyterian Church v. California Presbytery, (2000) 77 Cal.App.4th 1069, 1084.  A significant showing of irreparable harm is required for an injunction against a public officer or agency due to the general rule against enjoining them from performing their duties.  Tahoe Keys Property Owners Assn v. State Water Resources Control Board, (1994) 23 Cal.App.4th 1459, 1471.

In this case, Petitioners’ irreparable harm is the harm they are likely to sustain without a preliminary injunction preventing the City Council from hearing the Historic Cultural Monument issue on or before June 16.  Simply stating the issue suffices to show that Petitioners will suffer virtually no harm.  They merely have to wait less than two weeks, until June 16, to find out whether the Property will be designated as a Historic Cultural Monument that cannot be demolished. 

 Petitioners present evidence that, after the Historic Cultural Monument issue arose, and to a much greater extent than before, they and their neighbors have suffered from gawkers, trespassers, drones, tour buses, parked cars, all disrupting the safety and peace and quiet of the community.  Bank Decl., ¶12. 

This is unfortunate.  The court accepts that, even though the house has been known to the public (and Petitioners) to have been owned by Marilyn Monroe, the disruption greatly increased after the Historic Cultural Monument issue arose in September 2023.  However, there is nothing about this evidence that significantly bears on any irreparable harm from completion of the administrative process.  Indeed, a preliminary injunction and resultant destruction of the home may increase public attention to the Property and to Petitioners themselves on a short-term basis.[8] 

Moreover, Petitioners have waited more than seven months through the various pertinent events -- Councilmember Park’s motion initiating the designation process and the stay on September 8, 2023, the nomination application, the tour of the Property on January 11-12, 2024, the Commission hearing on January 18, 2024, and the PLUM Committee hearing on March 5, 2024 -- to seek injunctive relief against the City’s administrative process.  Almost all Petitioners’ arguments of City bias and unlawful action occurred at the beginning of this process and they could have sought the same injunctive relief at that point.  A plaintiff’s delay in seeking a preliminary injunction may constitute an admission of the lack of irreparable harm and a basis for denial of the application for a preliminary injunction.  O’Connell v. Superior Court, (2006) 141 Cal.App.4th 1452, 1481; Nutro Products v. Cole Grain Co., (1992) 3 Cal.App.4th 860, 866.  Petitioners provide no excuse for the delay.  See California W. School of Law v. California W. University, (1981) 125 Cal.App.3d 1002, 1006.  Petitioners therefore have waived any irreparable harm from completion of the administrative process.

The City’s irreparable harm is the harm that it is likely to sustain from a preliminary injunction preventing completion of the Historic Cultural Monument process by that date.  The City will suffer significant harm from a preliminary injunction.  Whatever the outcome, the City, its residents, and the public at large have a strong interest in the completion of administrative proceedings.  If a preliminary injunction is granted, Petitioners will exercise their Permits rights and demolish the home on the Property and the administrative process will never be completed.  If the City Council would have granted Historic Cultural Monument status to the home, that status will be permanently lost.  The public also has an interest in knowing if the City Council would not have granted Historic Monument status.

Balancing the harms, the City and public will suffer a strong and irreparable harm if the process is disrupted and the home is destroyed.  Petitioners will suffer virtually no harm in waiting for a two-week period if the preliminary injunction is denied.  Bank inadvertently admitted this lack of harm in his declaration by stating that he and his wife cannot even begin to estimate their damage if the City's intended designation of the Property goes through because they will be mired in the heavy burden of owning a tourist magnet creating a circus atmosphere harmful to them and their neighbors.  Bank Decl., ¶23.  These are harms that will result from the adoption of Historic Cultural Monument status, not from the lack of injunctive relief for a two-week period.

The balance of harms weighs almost completely in favor of the City. 

3. Reasonable Probability of Success

A preliminary injunction may not issue unless the trial court is persuaded that it is “reasonably probable” that the plaintiff will prevail on the merits.  San Francisco Newspaper Printing Co. v. Superior Court, (1985) 170 Cal.App.3d 438, 442.  The judge does not determine the merits of the action or decide that the plaintiff necessarily will prevail.  The judge only determines whether there is a reasonable probability that the plaintiff will prevail.  Youngblood v. Wilcox, (1989) 207 Cal.App.3d 1368, 1372.

Petitioners raise issues that (a) they have vested statutory rights under LAMC section 91.106.4.5.1 and by incurring expenses in reliance on the Permits, (b) the City’s stay provision in LAAC section 22.171.12 violates due process both facially and as-applied, and (c) the City’s process violated its own procedures and Petitioners’ due process rights.  Given Petitioners’ lack of irreparable harm, the court need not address these issues in detail.

a. Vested Rights

Petitioners correctly state that there are two avenues for a property owner’s vested rights to develop: (a) statute or ordinance (Davidson v. County of San Diego, (“Davidson”) (19996) 49 Cal.App.4th 639, 647) and by performing substantial work and incurring substantial liabilities in good faith reliance on a permit (Avco Community Developers, Inc. v. South Coast Regional Commission, (1976) 17 Cal.3d 785, 791).  Mot. at 15.

Petitioners argue that both avenues apply.  First, the City conferred rights to permittees in LAMC section 91.106.4.5.1., which creates a vested right once the 30-day hold period expires.  The City has admitted that the 30-day hold period exists to address “preservation” issues.  Sheridan Decl., Exs. 34-35. As a result, the City could not lawfully invoke the stay in LAAC section 22.171.12 after the 30-day hold expired.  Mot. at 15-16.

LAMC section 91.106.4.5.1’s language precludes LADBS from issuing a permit for demolition of a building or structure more than 45 years old without having sent written notices of the demolition pre-inspection application by mail to abutting property owners and the Council District Office for the site at least 30 days prior to issuance of the demolition permit or structure permit.  This language exists to allow adjacent property owners and the pertinent Council District Office sufficient notice to take action on a proposed demolition, including to seek historic preservation.  The ordinance says nothing about the applicant property owner’s rights. 

Plainly, once the 30-day period in LAMC section 91.106.4.5.1 ends, LADBS may issue a demolition permit and a property owner is free to use the permit to demolish a building or structure.  But LAMC section 91.106.4.5.1 does not confer any right to do so, and therefore is distinguishable from the case law cited by Petitioners such as Davidson, supra, 49 Cal.App.4th at 648 (ordinance conferred right to zoning in effect when building permit application was filed, but police power enabled county to impair those vested rights when necessary to protect health and safety).

Second, Petitioners argue that they acted in good faith reliance on the Permits by engaging consultants, contractors, and third parties for services, paying them over $20,000 for work.  Petitioners took these actions and made most of the payments after the Permits were issued and before they received notice of the City Council’s stay.  Mot. at 16.

This argument does not bear scrutiny.  Petitioners submitted an application for a demolition permit on July 31, 2023, the Permits were issued on September 7, 2023, and the stay was issued the next day on September 8, 2023.  Thus, there was only one day in which Petitioners could rely on the Permits.  The City points out that, with the exception of a $269.25 payment on September 8, the work and supporting invoices all occurred prior to issuance of the Permits.  Opp. at 14.  Petitioners did not rely on the Permits to make these payments.[9]

Aware of this problem, Petitioners argue that the City’s illegal acts during September 6-8, 2023 resulted in the stay that prevented them from incurring more expenses.  Mot. at 16.  Whatever the reason for their inaction, Petitioners did not incur substantial expense and effort in reliance on the Permits. 

Petitioners have not shown that they have vested rights to proceed with demolition under the Permits.

b. The Constitutionality of LAAC Section 22.171.12

Petitioners argue that LAAC section 22.171.12 violates due process, both facially and as-applied to them.

A facial attack on the overall constitutionality of a statute or ordinance “considers only the text of the measure itself, not its application to the particular circumstances of an individual.”  Tobe, supra, 9 Cal.4th at 1084 (citation omitted).  Under a facial challenge, the fact that the statute or ordinance “might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid....”  Id. (citing Sanchez v. City of Modesto, (2006) 145 Cal.App.4th 660, 679).  If a statute is constitutional in its general and ordinary application, it is not facially unconstitutional merely because there might be some applications where it would impinge upon constitutional rights.  City of San Diego v. Boggess, (2013) 216 Cal.App.4th 1494, 1503 (citation omitted).  See also Sturgeon v. Bratton, (2009) 174 Cal.App.4th 1407, 1418. 

Although the strictest standard of facial unconstitutionality requires total and fatal conflict in every circumstance, the courts have sometimes imposed a more lenient standard.  The California Supreme Court has acknowledged that it has “sometimes applied [the] more lenient standard, asking whether the statute is unconstitutional ‘in the generality or great majority of cases.’”  Gerawan Farming, Inc. v. Agricultural Labor Relations Board, (2017) 3 Cal.5th 1118, 1138 (emphasis in original). 

A court considering a facial challenge to a procedural scheme must determine whether the procedures “provide sufficient protection against erroneous and unnecessary deprivations of liberty” and property.  Schall v. Martin, (1984) 467 U.S. 253, 274.  “A statute is presumed to be constitutional and must be upheld unless its unconstitutionality clearly, positively and unmistakably appears.”  Boyer v. County of Ventura, (2019) 33 Cal.App.5th 49, 54 (internal quotations and citations omitted).  The party challenging the constitutionality of a statute carries a “heavy burden.”  City of Los Angeles v. Superior Court, (2002) 29 Cal.4th 1, 10; Denham v. Superior Court, (1970) 2 Cal.3d 557, 564.) 

Petitioners argue that LAAC section 22.171.12 violates due process because it does not provide notice and an opportunity to be heard to property owners before a stay is issue.  Mot. at 17-18.  The City responds that Petitioners are ignoring the notice and opportunity to be heard given throughout the Historic Monument designation process, including at public meetings held by the Commission, the PLUM Committee, and the City Council.  Opp. at 18.  Petitioners describe this notice and opportunity as an after-the-fact process that is irrelevant.  Reply at 7-8.

The issue presented is whether Petitioners were entitled to notice and a hearing before a stay was imposed.  Due process is flexible and calls for such procedural protections as the particular situation demands.  Mathews v. Eldridge, (1976) 424 U.S. 319, 333; Snelgrove v. Department of Motor Vehicles, (1987) 194 Cal.App.3d 1364, 1376.  The California Supreme Court has concluded that due process generally requires California state courts to consider four factors: (1) the private interest that will be affected by the individual action; (2) the risk of an erroneous deprivation of this interest through the procedures used and the probable value, if any, of additional or substitute safeguards; (3) the dignitary interest of informing individuals of the nature, grounds and consequences of the action and of enabling them to present their side of the story before a responsible governmental official; and (4) the government interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.  Oberholzer v. Commission on Judicial Performance, (“Oberholzer”) (1999) 20 Cal.4th 371, 390-91, n. 16 (citing Mathews v. Eldridge, supra, 424 U.S. at 334).

A pre-deprivation hearing is not always required to satisfy due process.  “[W]hen prompt postdeprivation review is available for correction of administrative error, we have generally required no more than that the predeprivation procedures used be designed to provide a reasonably reliable basis for concluding that the facts justifying the official action are as a responsible governmental official warrants them to be.” Mackey v. Montrym, (1979) 443 U.S. 1, 13 (pre-deprivation hearing not required for 90-day suspension after refusal of a breath test because post-suspension hearing was available immediately after driver's suspension).  See also Dixon v. Love, (1977) 431 U.S. 105, 106, 115 (pre-deprivation hearing not required before state may summarily suspend or revoke a license for drivers repeatedly convicted of traffic offenses where there were “special provisions for hardship and for holders of commercial licenses” and drivers were able to “obtain all the safeguards procedural due process could be thought to require” through an evidentiary hearing  within 20 days).

The parties have not analyzed the factors required by Oberholzer for a due process violation or the specific issues concerning pre- and post-deprivation hearings.  Petitioners, therefore, have not met their burden to show that LAAC section 22.171.12 is facially invalid.

As for Petitioners’ as-applied challenge, Petitioners do not state when they learned about the stay effort.  Bank states that he did not receive any advance notice of the City Council’s September 8, 2023 motion (Bank Decl., ¶9), but he does not state he was unaware of it.  He also states that he discovered LADBS’ Notice to Stop Construction attached to a gate outside of the Property on an unknown date (Bank Decl., ¶10), but again he does not state when he learned of the stay’s existence.  Given the media frenzy he describes (see Bank Decl., ¶10), he plainly was aware of the stay before he found it on the gate.  Petitioners also do not discuss whether they made any efforts to lift the stay or why their participation in the designation process before the Commission and PLUM Committee have not sufficed.

As stated post, a preliminary injunction prohibiting enforcement of a valid ordinance on the ground that it was unconstitutionally applied to the plaintiff should rarely be granted.  Xiloj-Itzep v. City of Agoura Hills, supra, 24 Cal.App.4th at 636. A due process violation also requires a showing of prejudice.  Krontz v. City of San Diego, (2006) 136 Cal.App.4^th 1126, 1141 (delay in notice and opportunity to be heard requires prejudice).   Petitioners have not shown this is that rare occasion in which an ordinance (LAAC §22.171.12) has been applied to them unconstitutionally and to their prejudice.

c. The City’s Procedure

The pertinent procedure for Historic Monument designation where, as here, the proposed designation has been issued by the City Council (through Councilmember Park’s motion) is as follows.

The City Council, the Commission, or the Director may initiate consideration of a proposed Historic Monument designation.  Any initiation by the City Council or Commission shall be by majority vote.  The City Council or the Commission shall forward the proposed designation to the Director for a report and recommendation.  LAAC §22.171.10(a).

Any interested individual may apply for a proposed designation of a site, building, or structure as a Historical Monument.  The applicant shall complete the application for the proposed designation on a form provided by the Planning Department, include all information required, pay the required fee, and file the application with the Planning Department.  LAAC §22.171.10(b).

Upon receipt of a proposed designation initiated by the City Council, the Commission shall, pursuant to LAAC section 22.171.8, inspect and investigate the proposed designation.  LAAC §22.171.10(c)(2).  As part of this inspection and investigation, the Commission or staff shall, inter alia, tour or review photographic/videographic records of the site and solicit opinions and information from the office of the Council District in which the site is located and from any City department or bureau whose operations may be affected by designation of the site.  LAAC §22.171.8. The Director shall thereafter prepare a report and recommendation on the proposed designation.  LAAC §22.171.10(c)(2).  After receipt of the Director’s report, the Commission shall determine at a public meeting whether the site, building, or structure conforms with the definition of a Historic Monument.  LAAC §22.171.10(c)(2).  The Commission shall submit a report and recommendation to the City Council.  If the Commission recommends approval, the City Council may adopt the designation by a majority vote.  LAAC §22.171.10(c)(2).  If the Commission recommends disapproval, the City Council may adopt the proposed designation by a two-thirds vote.  Id.  The City Council shall act within the time specified in LAAC section 22.171.10(f).

Petitioners argue that the City violated the procedure required for Historic Monument designation.  First, the Commission must investigate under LAAC section 22.171.10.  Yet, the City Council motion instructed the Planning Department to prepare the nomination.  Mot. at 18.

The City correctly responds that LAAC section 22.171.10(c)(2) requires the Commission to inspect and investigate pursuant to LAAC section 22.171.8, which requires “the Commission, its subcommittee or staff of the [Planning] Department acting on behalf of the Commission” to inspect and investigate.  The Historic Resources Office of the Planning Department may properly conduct the inspection and investigation on behalf of the Commission.  Opp. at 19.

Second, Petitioners argue that the Planning Department had the nomination application prepared at no cost by a biased advocate for designation, Goers, and this delegation was not permitted by LAAC section 22.171.10.  The Planning Department should have used one of its listed consultants contracted to perform this task.  Sheridan Decl., Ex. 46.  Mot. at 18-19; Reply at 8-9.

As Petitioners note (Reply at 9), the City does not address this issue. LAAC section 22.171.10(a) provides that the City Council may initiate consideration of a proposed Historic Monument designation by majority vote and then forward the proposed designation to the Director for a report and recommendation.  LAAC §22.171.10(a).  LAAC section 22.171.10(b) provides that there shall be a complete application for the proposed designation on a form provided by the Planning Department, but it does not state who may prepare it. 

Petitioners concede that the application preparation may be delegated to an outside third party but complains that Goers is not a contracted consultant and was biased.  Neither of these issues is directly addressed in LAAC section 22.171.10.  The court has no opinion whether the use of Goers was proper, but Petitioners have not adequately shown that it was not. 

As for the allegation of Goers’ bias, that is a due process issue, as is the alleged bias of Councilmember Park.  Petitioners allege that Councilmember Park actively and publicly prejudged the Historic Cultural Monument issue, including appearing in a bizaare Marilyn Monroe costume to give a long, prepared speech in favor of the nomination.  As a result, she is personally embroiled in the designation.  Mot. at 10-11; Reply at 9.  The City answers that Councilmember Park’s comments were based on her right and obligation to her constituents to state her view on a matter of public importance.  Opp. at 17.

City councilpersons are expected to voice opinions about quasi-legislative decisions.  Petrovich Development Company v. City of Sacramento, (2020) 48 Cal.App.5th 963, 973.  This is less true for quasi-legislative decisions.  When functioning in a quasi-adjudicaory capacity, the city council must be neutral and unbiased.  Id. (councilmember’s counting of votes and reporting to mayor that he was confident that he had the vote to deny CUP for gas station showed prehearing commitment).  The City Council’s Historic Cultural Monument process appears to be quasi-legislative, or at least Petitioners do not show it to be quasi-adjudicative. Therefore, Councilmember Park appears to have been entitled to lobby for Historic Monument designation pursuant to her obligations to her constituents.

In any event, the alleged bias of both Goers and Councilmember Park in the Historic Monument designation process are due process issues.  Prejudice will not be presumed; actual prejudice must be shown in order to be balanced against a due process violation.  People v. Belton, (1992) 6 Cal.App.4^th 1425, 1433 (delay in filing criminal charges requires balancing of prejudice against justification for delay).  “Reversible error requires demonstration of prejudice arising from the reasonable probability the party ‘would have obtained a better outcome’ in the absence of the error”.  Fisher v. State Personnel Bd., (2018) 25 Cal.App.5th 1, 20.

There has been no final outcome from which Petitioners could show prejudice from the alleged bias of either Goers or Councilmember Park.  Since both the Commission and the PLUM Committee have acted, Goers’ alleged partisanship may have no bearing on the outcome at all.  The City Council has not finally acted, and it is unknown whether Councilmember Park will participate or recuse herself from the vote.  For this reason, a preliminary injunction cannot be based on allegations of bias in the course of an as-yet not final administrative process.

Petitioners have not shown a reasonable prospect of success for their claims.[10]

E. Conclusion

Petitioners’ motion is an ill-disguised “motion to win” so that they can demolish the home and eliminate the Historic Cultural Monument issue.  That is not the purpose of a preliminary injunction, which is to preserve the status quo pending final judgment in the case.  See Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1316; Major v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 623.  The motion for a preliminary injunction is denied.