Judge: Joel L. Lofton, Case: 22STCP01276, Date: 2023-03-16 Tentative Ruling

Case Number: 22STCP01276    Hearing Date: March 16, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     March 16, 2023                                   TRIAL DATE: April 19, 2023

CASE:                         JERALD PTASHKIN and NICK HOOGENDYK, Petitioners, v. CITY OF WEST HOLLYWOOD; WEST HOLLYWOOD CITY COUNSEL; and DOES 1 TO 100, inclusive,  

FF1, LLC; EDWARD LEVIN; and ROES 1 to 100, inclusive, Real Parties in Interest. 

CASE NO.:                 22STCP01276 

MOTION FOR AN UNDERTAKING

MOVING PARTY:               FF1, LLC

RESPONDING PARTY:      Petitioners Jerald Ptashkin and Nick Hoogendyk

SERVICE:                              Filed February 9, 2023

OPPOSITION:                       Filed February 23, 2023

REPLY:                                   Filed March 1, 2023

RELIEF REQUESTED

            FF1 moves for an order compelling Petitioners to file an undertaking in the amount of $500,000 pursuant to Code of Civil Procedure section 529.2.

BACKGROUND

             This case arises from Petitioners Jerald Ptashkin and Nick Hoogendyk (“Petitioners”) CEQA claim against Respondents City of West Hollywood and West Hollywood City Counsel (“Respondents”). Petitioners claim that improperly approved the construiction of a five-story, 79-bedroom, 79-bathroom building to operate as a “co-living community” (“Project”).  

TENTATIVE RULING

            FF1’s motion to require Petitioners to file an undertaking is DENIED.

LEGAL STANDARD

“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.” (Code Civ. Proc. section 529.2, subd. (a).)

DISCUSSION

             Applicable Housing Project

            FF1 first argues that the Project is a development project defined by Government Code section 65928 and meets or excess the requirements for low- or moderate-income housing. (Laughlin Decl. ¶ 8, Exhibit H.) Petitioners do not contest that the Project satisfies these requirements of Code of Civil Procedure section 529.2 (“section 529.2”), subdivision (a).

            Whether the Action or Relief Sought Prevents or Delays the Project

            The first issue is whether “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”. (Section 529.2, subd. (a).)

            To support its position that the Project was delayed by Petitioner’s claims, FF1 submits the declaration of Ramin Bassam, the managing director of FF1. (Bassam Decl. ¶ 1.) Bassam provides FF1 intended to begin construction in August 2022. (Id. ¶ 10.) He continues that because of this petition, the Project will not begin construction until resolution of this litigation. He provides that FF1 is unable to proceed with the Project because the petition creates a risk of this court vacating the Project’s approvals. (Id. ¶ 13.)

            In opposition, Petitioners claim that Bassam’s declaration is insufficient to establish their petition prevents or delays the project by arguing that the project is not legally delayed. Petitioners argue that FF1 could continue the Project, “undertaken at [FF1’s] risk.” (Opposition at p. 11:12.)

            “ ‘Under the so-called “plain meaning” rule, courts seek to give the words employed by the Legislature their usual and ordinary meaning.” (Gonzalez v. County of Los Angeles (2004) 122 Cal.App.4th 1124, 1129.)

            Section 529.2, subdivision (a), applies when a plaintiff brings an action or seeks particular relief that “has the effect of preventing or delaying the project from being carried out”. In this case, Petitioners’ brought their claim seeking injunctive relief ‘enjoining Respondents and [FF1] from constructing or operating the Project”. (Petition at p. 13:2-3.) Petitioners’ argument that FF1 could still proceed with the construction by embracing the risk of being unable to complete the Project depending on the outcome of this action suggests an imprudent course of action and is rejected. This petition and the relief sought has had the effect of delaying the Project.

            Whether the Action was Brought in Bad Faith, Vexatiously, for the Purpose of Delay, or to Thwart Affordable Housing

            FF1 argues that Petitioners brought this claim in bad faith and to thwart low- or moderate-income housing.

            In support of its position that Petitioners brought this action in bad faith, FF1 asserts that Petitioners and related individuals engaged in a “unified attack”. (Motion at p. 8:5.) FF1 provides that petitioners and others complained about homeless individuals staying on the property. (PETS0300.) Individuals also complained about the hygiene, rodent issue, and safety caused by the condition of the property. (PETS00300-302.) Particularly, FF1 takes issue with the fact that the complaints called FF1 “rodent owners” (PETS00300) who “care nothing about the neighbors’ inconveniences” (PETS 00070.)

            FF1 has failed to establish that Petitioners brought this claim in bad faith. Although FF1 broadly claims that the parties worked in concert and in bad faith, FF1’s evidence primarily establishes that members of the neighborhood were opposed to the Project based, at least in part, on the condition of the property and FF1’s purported reputation. Although the cited evidence does present the fact that Petitioners and their purported associates strongly disagreed with the Project, it does not establish they brought this case in bad faith. The court does not rule on whether Petitioners’ underlying claims possess merit, but rather the court finds that FF1 has failed to establish this claim was brought in bad faith.

            FF1 also argues that the petition was brought to thwart affordable housing. In support of this position, FF1 points to statements made by Kathy Gura, where she states that a co-living development “promotes transiency”. (PETS00053.) Further, Gura stated, “Personally, I do not want to live next door to any form of dense, transient housing”. (Ibid.) FF1’s main evidence comes from the statements of an individual who purportedly works for and closely with Petitioners. (Motion at p. 7:19-25.) However, FF1’s evidence comes from the statement of one individual who is not a petitioner. Although FF1’s evidence shows that at least one individual disagreed with the plan of the Project, FF1 has not established that the statement is sufficient to show that Petitioners brought this claim to thwart affordable housing.

            Even if Gura’s statements could be imputed onto Petitioners as the statements of an agent, the evidence is insufficient to establish an improper motive pursuant to section 529.2. Gura’s statements express a personal agreement with the plan of the Project but does not explicitly condemn or vilify affordable housing. Further FF1 does not demonstrate that Gura’s personal disagreement with the form of the Project was the impetus behind Petitioners’ decision to file this present claim.

            Ultimately, FF1 has failed to establish by the preponderance of the evidence that Petitioners filed this claim for an improper reason as set forth in section 529.2. Because FF1 has failed to establish the first requirement, the court does not evaluate whether the second requirement has been met.

CONCLUSION

            FF1’s motion to require Petitioners to file an undertaking is DENIED.

            Moving Party to give notice.

Dated:   March 16, 2023                                             ___________________________________

                                                                                    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