Judge: Joel L. Lofton, Case: 22STCP01276, Date: 2022-09-19 Tentative Ruling

Case Number: 22STCP01276    Hearing Date: September 19, 2022    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     September 19, 2022                            TRIAL DATE:  No date set.

CASE:                         JERALD PTASHKIN and NICK HOOGENDYK, Petitioners, v. CITY OF WEST HOLLYWOOD; WEST HOLLYWOOD CITY COUNSEL; and DOES 1 TO 100, inclusive, Respondents, and FF1, LLC; EDWARD LEVIN; and ROES 1 to 100, inclusive, Real Parties in Interest.

CASE NO.:                 22STCP01276

MOTION TO COMPEL DISCOVERY FURTHER RESPONSES

MOVING PARTY:              Real Party in Interest FF1, LLC (“FF1”)

RESPONDING PARTY:     Petitioner Jerald Ptashkin and Nick Hoogendyk

SERVICE:                             Filed August 22, 2022

OPPOSITION:                      Filed September 6, 2022

REPLY:                                 Filed September 12, 2022

RELIEF REQUESTED

            FF1 moves for an order compelling Petitioner to produce further responses to its form interrogatories, request for admissions, and requests for production of documents.

BACKGROUND

            Petitioners Jerald Ptashkin and Nick Hoogendyk (“Petitioners”) bring this administrative mandamus action to challenge Respondents City of West Hollywood and West Hollywood City Council’s (“Respondents”) approval of FF1, LLC’s construction project to build a five-story, 79-bedroom building to be operated as a “co-living community” (“Project”). Petitioners filed this petition seeking a writ of mandate to set aside West Hollywood City Council Resolution 22-5484.

TENTATIVE RULING

            FF1’s motion to compel further responses is granted in part.

            Petitioners are ordered to produce further responses to RFP numbers 1 through 19, 29, 31, and 34. Petitioners are ordered to produce further responses to RFP numbers 27, 28, 32, and 33 with the added language “related to either the project or the petition”.

            FF1’s motion to compel further is denied as to RFP numbers 20, 21, 35, 36, and 37.

            Petitioners are ordered to produce further responses to Form Interrogatory number 17.

            Petitioners are ordered to provide further responses to RFA numbers 1, 2, 5, and 7.

            All requests for sanctions are denied.

REQUEST FOR JUDICIAL NOTICE

            FF1’s request for judicial notice as to Exhibits A and B is granted pursuant to Evidence Code section 452, subdivision (d).

LEGAL STANDARD

On receipt of a response to discovery requests, the party requesting may move for an order compelling further responses for interrogatories (Code Civ. Proc. 2030.300), requests for admission (Cod. Civ. Proc. section 2033.290), and request for production (Code Civ. Proc. section 2031.310). “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the requests for admission.” (Code Civ. Proc. section 2033.290, subd. (c).)

DISCUSSION

            Whether Discovery in Permissible in the Present Instance

            The primary issue presented is whether FF1 is entitled to engage in the discovery process during the present administrative mandamus action.

            Petitioners claim that FF1 is not allowed to engage in the discovery process because FF1 is improperly seeking documents and materials outside of the administrative record. Petitioners primarily rely on Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93 (“Pomona Valley”).

            “The general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency.” (Toyota of Visalia, Inc. v. New Motor Vehicle Bd. (1987) 199 Cal.App.3d 872, 881.)

            In Pomona Valley, supra, 55 Cal.App.4th at p. 99, the petitioner had filed a motion to take the deposition of an individual who had participated in the administrative process to augment the record by demonstrating that the individual had ulterior motives. The Court held that augmentation of the record was only permitted within the strict limits set forth in Code of Civil Procedure section 1094.5, subdivision (e).) (Id. at p. 101.) The Court stated that “discovery under section 1094.5, unlike general civil discovery, cannot be used to go on a fishing expedition looking for unknown facts to support speculative theories.” (Id. at p. 102.)

            FF1, however, contends that it is not seeking discovery to augment the administrative record but rather to obtain evidence to (1) support a motion under Code of Civil Procedure section 529.2 and (2) challenge Petitioners’ standing to bring this action.

            Code of Civil Procedure section 529.2, subdivision (a), provides: “In all civil actions, including, but not limited to, actions brought pursuant to Section 21167 of the Public Resources Code, brought by any plaintiff to challenge a housing project which is a development project, as defined by Section 65928 of the Government Code, and which meets or exceeds the requirements for low- or moderate-income housing as set forth in Section 65915 of the Government Code, a defendant may, if the bringing of the action or the seeking by the plaintiff of particular relief including, but not limited to, injunctions, has the effect of preventing or delaying the project from being carried out, apply to the court by noticed motion for an order requiring the plaintiff to furnish an undertaking as security for costs and any damages that may be incurred by the defendant by the conclusion of the action or proceeding as the result of a delay in carrying out the development project. The motion shall be made on the grounds that: (1) the action was brought in bad faith, vexatiously, for the purpose of delay, or to thwart the low- or moderate-income nature of the housing development project, and (2) the plaintiff will not suffer undue economic hardship by filing the undertaking.”

            “As a general rule, a party must be ‘beneficially interested’ to seek a writ of mandate. (Code Civ. Proc., § 1086.) ‘The requirement that a petitioner be “beneficially interested” has been generally interpreted to mean that one may obtain the writ only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.’ ” (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 165.) “The beneficial interest must be direct and substantial.” (Ibid.)

            The core disagreement between the parties is that Petitioners claim that FF1 is seeking discovery to augment the administrative record while FF1 argues it seeking evidence to support motions that are separate from a determination of the substantive merits of Petitioner’s CEQA claims.

            “The Civil Discovery Act applies to both civil actions and special proceedings of a civil nature. [Citations.] A petition for writ of mandate is a special proceeding.” (Golden Door Properties, LLC v. Superior Court of San Diego County (2020) 53 Cal.App.5th 733, 777.) The Court recognizes that Petitioners are correct in asserting that in Golden Door, the moving party had sought discovery of record evidence, as opposed to extra-record evidence. (Id. at p. 766.) Still, the holding in Golden Door supports the conclusion that discovery is not barred wholesale in an administrative mandamus action.

            Here, FF1 is seeking discovery of neither record evidence nor extra-record evidence to augment the record. Rather, FF1 is seeking evidence specific to Petitioners to support a motion under Code of Civil procedure section 529.2 and Petitioners’ standing. In this way, Pomona Valley is distinguishable from the present circumstances because FF1 is not seeking to augment the administrative record. FF1 is seeking evidence related to procedurally and substantively distinct issues from Petitioners’ CEQA claims.

            In Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 693 a defendant in a CEQA case had noticed a deposition of the petitioner’s person most qualified (“PMQ”) to obtain evidence related to standing. The trial court ordered the petitioner to produce the PMQ for deposition and produce all requested documents. (Id. at p. 695.) After the petitioner’s failure to comply, the trial court granted an issue sanction finding that the petitioner lacked standing. (Id. at pp. 700-701.) Although the appellate court did not specifically address the issue of what discovery was allowable, it did affirm the trial court’s decision to issue terminating sanctions based on the petitioner’s failure to comply with the court’s discovery orders. (Id. at p. 703.)

            Creed-21 supports the proposition that discovery is allowable in certain instances to address issues separate from the underlying CEQA claims. Thus, the Court rejects Petitioners’ contention that Code of Civil Procedure section 1094.5, subdivision (e), creates a categorical bar to discovery in administrative mandamus actions even if the evidence is sought in relation to procedurally distinct motions.

            FF1 is therefore entitled to seek discovery in relation to its section 529.2 motion and to challenge Petitioners’ standing.

            Motion to Compel Further

            FF1 moves to compel further responses to its request for production of documents, form interrogatory, and requests for admissions.

            Requests for Production of Documents

            RFP No. 1: All agreements YOU entered RELATED TO the PETITION

            RFP No. 2: All agreements YOU entered RELATED TO the PROJECT.

            RFP No. 3: All COMMUNICATIONS RELATED TO the PETITION.

            RFP No. 4: All COMMUNICATIONS RELATED TO the PROJECT.

            RFP No. 5: All DOCUMENTS RELATED TO the PETITION.

            RFP No. 6: All DOCUMENTS RELATED TO the PROJECT.

            RFP No. 7: All DOCUMENTS RELATED TO YOUR decision to file the PETITION

            RFP No. 8: All COMMUNICATIONS RELATED TO YOUR decision to file the PETITION.

            RFP No. 9: All COMMUNICATIONS with NICK HOOGENDYK RELATED TO the PROJECT.

            RFP No. 10: All COMMUNICATIONS with NICK HOOGENDYK RELATED TO the PETITION

            RFP No. 11: All DOCUMENTS RELATED TO the reasons YOU filed the PETITION.

            RFP No. 12: All COMMUNICATIONS RELATED TO the reasons YOU filed the PETITION.

            RFP No. 13: All DOCUMENTS YOU entered for services RELATED to the PETITION.

            RFP No. 14: All COMMUNICATIONS RELATED TO services YOU engaged RELATED TO THE PETITION.

            RFP No. 15: All DOCUMENTS for services YOU entered into RELATED TO the PROJECT.

            RFP No. 16: : All COMMUNICATIONS with NICK HOOGENDYK RELATED TO the legal services for the PROJECT.

            RFP No. 17: All COMMUNICATIONS with NICK HOOGENDYK RELATED TO the legal services for the PETITION.

            RFP No. 18: All COMMUNICATIONS RELATED TO YOUR property value since YOU learned of the PROJECT beginning in 2011.

            RFP No. 19: All COMMUNICATIONS RELATED TO JERALD PTASHKIN'S property value since YOU learned of the PROJECT.

            RFP No. 20: All COMMUNICATIONS RELATED TO affordable housing projects within 3 miles of YOUR location made in the last ten years.

            RFP No. 21: All DOCUMENTS RELATED TO affordable housing projects within 3 miles of YOUR location made in the last ten years.

            RFP No. 27: All COMMUNICATIONS RELATED TO RAMIN BASSAM

            RFP No. 28: All COMMUNICATIONS RELATED TO Real Parties in Interest FF1, LLC.

            RFP No. 29: All DOCUMENTS supporting a finding that YOU have standing to maintain the PETITION.

            RFP No. 31: All COMMUNICATIONS RELATED TO the preparation, public review, and governmental approval of the West Hollywood City Council Resolution 22-5484.

            RFP No. 32: All COMMUNICATIONS referring to RAMIN BASSAM.

            RFP No. 33: All COMMUNICATIONS referring to Real Parties in Interest FF1, LLC.

            RFP No. 34: All COMMUNICATIONS referring to RAMIN BASSAM as a “carpet beggar”.

            RFP No. 35: All COMMUNICATIONS referring to IRANIANS in the past five years.

            RFP No. 36: All COMMUNICATIONS RELATED TO projects owned or developed by IRANIANS within 3 miles of YOUR location made in the last ten years.

            RFP No. 37: All DOCUMENTS RELATED TO projects owned or developed by Iranians within 3 miles of YOUR location made in the last ten years.

            FF1’s motion to compel further responses is granted in part. Petitioners are ordered to produce further responses to RFP numbers 1 through 19, 29, 31, and 34. Petitioners are ordered to produce further responses to RFP numbers 27, 28, 32, and 33 with the added language related to either the project or the petition.

            FF1’s motion to compel further is denied as to RFP numbers 20, 21, 35, 36, and 37.

            Form Interrogatory

            Form Interrogatory No. 17.1: Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: (a) state the number of the request; (b) state all facts upon which you base your response; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.

            Petitioners are ordered to produce further responses to Form Interrogatory number 17.

            Requests for Admission

            RFA No. 1: Admit that YOU filed the PETITION to thwart the PROJECT.

            RFA No. 2: Admit YOU oppose the PROJECT based on the PROJECT’s design as a co-living housing development.

            RFA No. 5: Admit YOU oppose the PROJECT because you contend it is a Single Room Occupancy Building.

            RFA No. 7: Admit YOU oppose the PROJECT, in part, because YOU contend it is not an “18-unit ‘apartment’ building as stated in the public notices, but rather a 73 unit SRO [single room occupancy] building.”

            Petitioners are ordered to provide further responses to RFA numbers 1, 2, 5, and 7.

            Sanctions

            FF1’s requests sanctions totaling $16,250.00 to bring this motion. However, the Court finds that Petitioners acted with substantial justification. All requests for sanctions are denied.

CONCLUSION

            FF1’s motion to compel further responses is granted in part.

            Petitioners are ordered to produce further responses to RFP numbers 1 through 19, 29, 31, and 34. Petitioners are ordered to produce further responses to RFP numbers 27, 28, 32, and 33 with the added language related to either the project or the petition.

            FF1’s motion to compel further is denied as to RFP numbers 20, 21, 35, 36, and 37.

            Petitioners are ordered to produce further responses to Form Interrogatory number 17.

            Petitioners are ordered to provide further responses to RFA numbers 1, 2, 5, and 7.

            All requests for sanctions are denied.

            Responses are due 30 days from notice of this ruling

            Moving Party to give notice

Dated:   September 19, 2022                          ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org