Judge: Joel L. Lofton, Case: 22STCP04323, Date: 2023-06-22 Tentative Ruling
Case Number: 22STCP04323 Hearing Date: September 18, 2023 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: September 18, 2023 TRIAL
DATE: No date set.
CASE: THE SILVER LAKE
HERITAGE TRUST, v. CITY OF LOS ANGELES; LOS ANGELES DEPARTMENT OF CITY
PLANNING; CITY PLANNING COMMISSION; VINCENT P. BERTONI; and DOES 1 through 20,
inclusive.
CASE NO.: 22STCP04323
MOTION
TO SET ASIDE DISMISSAL
DEMURRER
MOVING PARTY: Motion to Set Aside Dismissal filed
by Petitioner The Silver Lake Heritage Trust (“Petitioner”)
Demurrer
filed by Respondents City of Los Angeles, Los Angeles Department of City
Planning, and City Planning Commission and Real Parties in Interest AYM
Investment, LLC and Michael Masoud Aminpour (“Demurring Parties”)
SERVICE: Motion
to set aside dismissal filed August 4, 2023
Demurrer
filed August 10, 2023
OPPOSITION: Opposition
to motion to set aside dismissal filed September 5, 2023
Opposition
to demurrer filed September 5, 2023
REPLY: Reply to
motion to set aside dismissal filed September 11, 2023
Reply
to demurrer filed September 11, 2023
RELIEF
REQUESTED
Petitioner moves for an order
setting aside dismissal.
BACKGROUND
This case arises out of Petitioner’s CEQA
claims involving the City of Los Angeles’ approval of a development project
located at 1251-1259 W. Sunset Blvd, Los Angeles, California (“Project”).
Petitioner filed a first amended petition on June 9, 2023.
TENTATIVE RULING
Petitioner’s
motion to set aside the dismissal of its first and third causes of action is
GRANTED.
REQUEST FOR JUDICIAL NOTICE
Demurring
Parties request for judicial notice for Exhibits 1, 2, 3, and 4 is granted
pursuant to Evidence Code section 452, subdivision (b).
LEGAL STANDARD
“Section 473(b) provides for both discretionary and
mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th
298, 302.) The discretionary relief provisions of Code of Civil
Procedure section 473, subd. (b) provide in relevant part: “The court may, upon any terms
as may be just, relieve a party or his or her legal representative from a
judgment, dismissal, order, or other proceeding taken against him or her
through his or her mistake, inadvertence, surprise, or excusable neglect. Application
for this relief shall be accompanied by a copy of the answer or
other pleading proposed to be filed therein, otherwise the application
shall not be granted, and shall be made within a reasonable time, in no case
exceeding six months, after the judgment, dismissal, order, or proceeding was
taken.”
Mandatory relief under Code of Civil Procedure section 473,
subdivision (b), is not available for dismissals pursuant to Public Resources Code section 21167.4. (Nacimiento
Regional Water Management Advisory Com. v. Monterey County Water Resources
Agency (2004) 122 Cal.App.4th 961, 968-969.)
DISCUSSION
I. MOTION TO SET ASIDE DISMISSAL
On
June 22, 2023, this court granted Respondent’s motion to dismiss Petitioner’s
first and third causes of action based on Petitioner’s failure to comply with Public Resources Code section 21167.4
(“section 21167.4”). In the June 22 order, this court found that the original
Petition was filed on December 12, 2022, and that Petitioner had until March
12, 2023, to file a request for hearing.
“The decision of
whether to grant relief for the failure to file a timely hearing request
implicates two competing public policies—the strong preference for a trial on
the merits and the policy favoring expeditious review of CEQA challenges. The
preference for trial on the merits is well established.” (Comunidad en
Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1131.)
“ The requirement for expeditious review of CEQA claims also is well
established. CEQA ‘Contains a number of procedural provisions evidencing
legislative intent that the public interest is not served unless CEQA challenges
are promptly filed and diligently prosecuted.’ ” (Id. at p.
1132.)
“In determining
whether the attorney's mistake or inadvertence was excusable, ‘the court
inquires whether “a reasonably prudent person under
the same or similar circumstances” might have made the same error.[’]
[Citation.] In other words, the discretionary relief provision of section
473 only permits relief from attorney error ‘fairly imputable to the
client, i.e., mistakes anyone could have made.’ ” (Comunidad en Accion,
supra, 219 Cal.App.4th at p. 1132.)
Here,
Petitioner’s counsel provides he filed a substitution of attorney form on
February 7, 2023. (Morgan Decl. ¶ 17.) Petitioner’s counsel also provides that he believed that
the trial setting conference satisfied the statutory requirements to expedite
the case. (Id. ¶ 13.) Although Petitioner’s counsel does not expressly
provide that he made a mistake, Petitioner failed to timely file a request for
hearing based on its mistakes as well as the mistakes of its counsel. The
question is whether the mistake was excusable so as to justify relief under
section 473. The court finds that relief under section 473 is warranted in the
present case. Counsel substituted in relatively late where Petitioner had
previously been unrepresented. Further, although counsel’s failure to file a
request for hearing was clearly a mistake, it was excusable based on the
relatively small window of time he had to make a decision as well as
Respondent’s agreement to continue the trial setting conference.
Further, because Respondent and real parties in interest
orally stipulated to continue the trial setting conference, there is no
prejudice in granting relief to Petitioner so that this case may be heard on
its merits. “Where the mistake is excusable and the party seeking relief
has been diligent, courts have often granted relief pursuant to the
discretionary relief provision of section 473 if no prejudice to the
opposing party will ensue.” (Comunidad en Accion, supra, 219 Cal.App.4th
at pp. 1132-33.)
Petitioner’s
motion to set aside the dismissal of its first and third causes of action is
granted.
II. Demurrer
Demurring
Parties demurrer to the second, fourth, fifth, sixth, and seventh causes of
action of the FAP.
A. Demurrer as to the Second Cause of
Action
Demurring Parties
object to Petitioner’s second cause of action for violation of Los Angeles
Municipal Code section 11.5.13.C (“section 11.5.13”). Section 11.5.13,
subdivision (c), provides: “When any decision-maker in any action authorized by this Chapter, other than
the City Council, certifies an environmental impact report, adopts a negative
declaration, a mitigated negative declaration, or a sustainable communities
environmental assessment; or determines that the Project subject to approval
under this Chapter is not subject to CEQA, that certification, approval, or
determination may be appealed to the City Council, provided that: [¶] 1.all administrative
appeals of the Project approval were exhausted; [¶] 2. the appeal is filed with the
Department of City Planning within 15 days of the Project approval becoming
final; and [¶] 3. the
appeal is filed in a form and manner required by the Department of City Planning.”
Petitioner
argues that the Planning Commission’s Letter of Determination dated October 20,
2022 (“2022 LOD”), was improper. Specifically, Petitioner argues that the 2022
LOD provided improper notice about its right to appeal and the 2022 LOD
improperly restricted Petitioner’s right to appeal. However, the court notes
that neither party argues that the 2022 LOD could, in a practical sense, legally
prevent Petitioner from filing a CEQA appeal.
“ ‘ “A demurrer
is simply not the appropriate procedure for determining the truth of disputed
facts.” The hearing on demurrer may not be turned into a contested
evidentiary hearing through the guise of having the court take judicial notice
of documents whose truthfulness or proper interpretation are disputable.’ ” (Panterra
GP, Inc. v. Superior Court of Kern County (2022) 74 Cal.App.5th 697, 709.)
Here, the
parties dispute whether the language in the LOD 2022 properly notified
Petitioner of its right to appeal or improperly led Petitioner to believe that
there was no right to appeal. These considerations require factual findings
that are not appropriate during the demurrer stage. The court declines to weigh
the merits of the parties’ arguments as they pertain to disputed facts.
Demurring
Parties’ demurrer to Petitioner’s second cause of action is overruled.
B. Demurrer as to the Fourth, Sixth, and
Seventh Causes of Action
Demurring
Parties object to Petitioner’s fourth cause of action for violation of L.A.
Measure JJJ, sixth cause of action for facial challenge to TOC Guidelines, and
seventh cause of action for compliance with Measure JJJ.
Petitioner
alleges that on November 8, 2016, voters in the city of Los Angeles approved
Measure JJJ, which, in part, established different tools to encourage the
development of affordable housing and housing close to transit services. (FAP ¶¶72-73.) Pursuant to Measure JJJ, the Los
Angeles City Planning Commission voted to approve a Transit Oriented
Communities Affordable Housing Incentive Program Guidelines (“TOC Guidelines”)
on May 25, 2017. (RJN Exhibit 3.)
The fourth, sixth, and seventh causes of action in the
FAP all seek to challenge the TOC Guidelines in some way. The fourth cause of
action purports to allege facts to challenge the incentives allowed for in the
TOC Guidelines as applied to the Project. The sixth cause of action seeks to
facially challenge the TOC Guidelines. Lastly, the seventh cause of action seeks
to challenge the TOC Guidelines on the basis that the City Council did not
adopt or reject the TOC Guidelines.
1. Statute
of Limitations
Demurring
Parties argue that each of the causes of action challenging the TOC Guidelines
is barred by Government Code section 65009 (“section 65009”), subdivision
(c)(1).
“[S]ection
65009 establishes
a short statute of limitations, 90 days, applicable to actions challenging
several types of local planning and zoning decisions: the adoption of a general
or specific plan (id., subd. (c)(1)(A)); the
adoption of a zoning ordinance (id., subd.
(c)(1)(B)); the adoption of a regulation attached to a specific plan (id., subd. (c)(1)(C)); the adoption of a
development agreement (id., subd.
(c)(1)(D)); and the grant, denial, or imposition of conditions on a variance or
permit (id., subd. (c)(1)(E)). Subdivision (e) of the
statute provides that after expiration of the limitations period, ‘all persons
are barred from any further action or proceeding.’ ” (Travis v. County of
Santa Cruz (2004) 33 Cal.4th 757, 765-66.)
Demurring Parties argue that the
90-day period started running from the time the TOC Guidelines went into effect
on September 22, 2017. (RJN Exhibit 3.) In opposition, Petitioner argues that
the statute of limitations started running after the TOC Guidelines were
applied to the Project on October 20, 2022, when the decision to approve the
Project became final. Petitioner alternatively argues that the TOC Guidelines
have never been adopted, eliminating any application of the statute of
limitations.
Applying section 65009 to the FAP,
the court finds that Petitioner’s fourth cause of action is timely but
Petitioner’s sixth and seventh causes of action are not.
Relevant to the present
circumstances and cited by the parties are two cases: Travis, supra, 33
Cal.4th 757 and County of Sonoma v. Superior Court (2010) 190
Cal.App.4th 1312 (“County of Sonoma”). In Travis, supra,
the named plaintiff was granted, subject to conditions, a permit to construct a
second dwelling unit on his property. (33 Cal.4th at p. 764.) The plaintiff sued
to challenge the validity of the ordinance that gave rise to the conditions. (Ibid.)
The California Supreme Court found that “plaintiffs object not only to the
Ordinance's enactment and continued existence, but also to its application to their second dwelling unit
permits.” (Id. at p. 768.) Stated another way, the plaintiffs’ complaint
was “aimed not only at the Ordinance's enactment or existence but also at the
County's enforcement of the Ordinance
against plaintiffs' own property.” (Ibid.)
In County of Sonoma, supra,
the real-parties-in-interest (“Cooperative”) challenged an ordinance permitting
medical cannabis dispensaries within certain zoning districts. (190 Cal.App.4th
at p. 1316.) The Court held that Cooperative’s claims were facial in nature and
thus time barred. (Id. at p. 1326.) The Court distinguished the
circumstances from those presented in Travis because, notably, the
plaintiff in County of Sonoma had not even applied for a permit. (Id.
at p. 1328.) The Court further noted that the plaintiff in Travis “was
allowed to press his facial claims only because he had brought a timely
as-applied challenge to the conditions imposed in his permit.”
Here, Petitioner’s claims are based
on its allegations that one of the incentives provided for in the Project’s
approval, specifically the allowed additional story, is an improper application
of the TOC Guidelines because it allows for incentives outside of the scope provided
for in Measure JJJ. However, this is only applicable to Petitioner’s fourth
cause of action. Petitioner’s claim is an as-applied challenge to the TOC
Guidelines based on a condition provided for in the Project’s approval.
Demurring Parties argue in reply that Petitioner has failed to allege it was
the applicant or an injury. However, those considerations are more relevant to
the issue of standing.
The relevant statutory language
found in latter half of section 65009, subdivision (c)(1)(E), provides that the
90-day statute of limitations applies to cases seeking “to determine the
reasonableness, legality, or validity of any condition attached to a variance,
conditional use permit, or any other permit.” However, “[a] plaintiff . . . may not avoid
the short 90–day limit of section 65009 by
claiming that the permit or condition is ‘void’ and thus subject to challenge
at any time. (Travis, supra, 33 Cal.4th at p. 768.) The plaintiff must
have a means to challenge the enforcement of the challenged condition. (Ibid.)
Petitioner in the present seeks to challenge the application, i.e. the approval
of the Project, of a condition, or whether Measure JJJ allows for the
additional story allowed in the TOC Guidelines.
Petitioner’s sixth and seventh
causes of action, however, do not fall outside the application of the statute
of limitation. Petitioner’s sixth and seventh causes of action similarly argue
that the TOC Guidelines are invalid because they were not properly approved
pursuant to the requirements of Measure JJJ. (FAP ¶¶ 90-99.) However, these
claims are distinctly facial challenges of the validity of the statute and are
unconnected to Petitioner’s claims involving the Project’s approval. As facial
claims, Petitioner was required to bring such claims within 90-days of the approval
date of the TOC Guidelines. Petitioner’s unsupported claim that the TOC
Guidelines were never adopted does not delay the date the statute of limitation
started to run. Petitioner’s sixth and seventh causes of action are untimely.
Demurring Parties’ demurrer to
Petitioner’s sixth and seventh causes of action are sustained.
Standing
Demurring Parties also argue that
Plaintiff’s fourth cause of action is deficient because Petitioner does not
have standing to brings its claim.
“Normally, to have standing to
petition for a writ of mandate, the petitioner must be ‘beneficially
interested.’ ” (People for Ethical Operation of Prosecutors and Law
Enforcement v. Spitzer (2020) 53 Cal.App.5th 391, 408.) “Under the doctrine
of public interest standing, ‘ “ ‘where the question is one of public right and
the object of the mandamus is to procure the enforcement of a public duty, the
[petitioner] need not show that he has any legal or special interest in the
result, since it is sufficient that he is interested as a citizen in having the
laws executed and the duty in question enforced.’ ” [Citation.]’ [Citation.]
Indeed, California ‘courts have repeatedly applied the “public right/public
duty” exception to the general rule that ordinarily a writ of mandate will
issue only to persons who are “beneficially interested.” ’ ” (Weiss v. City
of Los Angeles (2016) 2 Cal.App.5th 194, 205.)
Here,
Petitioner alleges that the TOC Guidelines, as applied to the Project’s
approval, allows for incentives for housing developments that are not expressly
allowed under Measure JJJ. (FAP ¶ 78.) Petitioner argues that
the TOC Guidelines are inconsistent with Measure JJJ. Since this is the
pleading stage, Petitioner has sufficiently alleged standing to bring its
present challenge to the TOC Guidelines.
Demurring
Parties’ demurrer to Plaintiff’s fourth cause of action is overruled.
Fifth
Cause of Action
Demurring
Parties argue that Petitioner’s fifth cause of action fails to state a claim
because it only contains conclusory language. While the court recognizes that
the allegations under the titled “fifth cause of action” is sparse and vague,
in the context of the entire pleading, Petitioner alleges the project violated
various aspects of the City’s general plan and zoning codes.
Demurring
Parties’ demurrer to Plaintiff’s fifth cause of action is overruled.
CONCLUSION
Petitioner’s
motion to set aside the dismissal of its first and third causes of action is
GRANTED.
Demurring Parties’ demurrer to Plaintiff’s second,
fourth, and fifth causes of action is OVERRULED.
Demurring Parties’ demurrer to Plaintiff’s sixth and
seventh causes of action is SUSTAINED with leave to amend.
Moving Party to give notice.
Dated: September 18,
2023 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court