Judge: Joel L. Lofton, Case: 23AHCP00074, Date: 2023-11-14 Tentative Ruling
Case Number: 23AHCP00074 Hearing Date: November 14, 2023 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: November 14, 2023 TRIAL
DATE: No date set.
CASE: ATLANTIC SQUARE,
LLC, d/b/a TRC, a Delaware limited liability company, v. CITY OF MONTEREY PARK;
CITY COUNCIL OF CITY OF MONTEREY PARK; RON BOW, an individual, in his capacity
as CITY MANAGER OF THE CITY OF MONTEREY PARK; JESSICA SERRANO, an individual,
in her capacity as INTERIM DIRECTOR OF COMMUNITY DEVELOPMENT OF THE CITY OF
MONTEREY PARK, and DOES 1-5.
Real parties in
interest: RAISING CANE’S RESTAURANTS, L.L.C., a Louisiana limited
liability company, RAISING CANE’S USA, L.L.C., a Louisiana limited liability
company; CHAPMAN W. LEW, an individual, and DOES 6-10.
CASE NO.: 23AHCP00074
DEMURRERS
MOTION
TO STRIKE
MOVING PARTY: Real Parties in Interest and
Defendants Raising Cane’s Restaurants, L.L.C., Raising Cane’s USA, L.L.C., and Chapman
W. Lew (“Real Parties”)
Respondents
and Defendants City of Monterey Park, City Counsel of Monterey Park, Planning
Commission of the City of Monterey Park, Rob Bow, and Jessica Serrano.(“Defendants”)
RESPONDING PARTY: Petitioner
and Plaintiff Atlantic Square, LLC (“Plaintiff”)
SERVICE: Both demurrers filed August 15, 2023
OPPOSITION: Filed October 31, 2023
REPLY: Filed November 6, 2023
RELIEF
REQUESTED
Real Parties and Defendants
separately demurrer to Plaintiff’s second amended complaint (“SAC”). Real
Parties move to strike portions of Plaintiff’s SAC.
BACKGROUND
This case arises out of Plaintiff Atlantic
Square, LLC (“Plaintiff”) claim that Raising Cane’s Restaurant, L.L.C.’s
(“Raising Cane’s”) operation of the drive-through causes dangerous conditions
on the road and blocks access to Plaintiff’s own parking lot. Plaintiff alleges
that Defendants have failed to take proper action to prevent the conditions
caused by Raising Cane’s operations of its drive-through.
Plaintiff’s claims are based on the
manner in which Raising Cane’s operates its drive-through. Plaintiff alleges
that the North Alley is a public right of way that connects Atlantic Boulevard
to the northern section of the parking lot of Atlantic Square. (FAPC ¶ 18.) Plaintiff alleges that Raising Cane’s
is located at 1970 S. Atlantic Boulevard, which is immediately north of
Atlantic Square. (Id. ¶ 19.) Plaintiff alleges that shortly after
Raising Cane’s opened on or around June 1, 2022, Raising Cane’s began directing
drive-through customers to use the North Alley to queue for the drive-through
windows. (Id. ¶¶ 30-31.) Plaintiff alleges that cars queueing for the
drive-through occasionally block off the North Alley or even spill over onto
Plaintiff’s property. (Id. ¶¶ 32-38.)
Plaintiff filed a second amended
petition and complaint (“SAC”) on July 18, 2023, alleging 5 causes of action
for (1) writ of mandate, (2) public nuisance, (3) private nuisance, (4)
nuisance per se, (5) violation of California Business and Professions Code
section 17200, et seq. (“UCL”), and (6) declaratory relief.
TENTATIVE RULING
Real Parties and Defendant’s demurrers to Plaintiff’s
first cause of action for writ of mandate are SUSTAINED with leave to amend.
The remainder of Real Parties and Defendant’s demurrers
are OVERRULED.
Real Parties’ motion to strike is DENIED.
REQUESTS FOR JUDICIAL NOTICE
Defendant’s request for judicial notice for exhibit A is granted.
Real Parties request for judicial notice for exhibits 1-6 is granted.
However, the court does not take notice of the contested facts therein. “Although
the existence of a document may be judicially
noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if
those matters are reasonably disputable.” (Unruh-Haxton v. Regents of
University of California (2008) 162 Cal.App.4th 343, 364.)
LEGAL STANDARD
Demurrer
A general
demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to
constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the
complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the
defects must be apparent on the face of the pleading or by proper judicial
notice. (Code Civ. Proc. section
430.30(a).) A demurrer tests the pleadings alone and not the evidence or
other extrinsic matters. (SKF Farms v. Superior Court (1984) 153
Cal. App. 3d 902, 905.) The only issue involved in a demurrer hearing is
whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action. (Hahn v.
Mirda, supra, 147 Cal.App.4th 740, 747.)
Additionally, a
special demurrer to a complaint may be brought on the ground the pleading is
uncertain, ambiguous, or unintelligible. Code Civ. Proc section 430.10(f); Beresford Neighborhood Assn. v. City of
San Mateo (1989) 207 Cal.App.3d 1180, 1191.) A demurrer based
on uncertainty is disfavored and will be strictly construed even when the
pleading is uncertain in some respects. (Khoury v. Maly's of California, Inc. (1993) 14
Cal.App.4th 612, 616.) A demurrers based on uncertainty are “granted only if
the pleading is so incomprehensible that a defendant cannot reasonably
respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208
Cal.App.4th 1125, 1135.)
Motion to Strike
Any party, within the time allowed to respond to a pleading
may serve and file a notice of motion to strike a pleading or any part
thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The
court may, upon a motion, or at any time in its discretion, and upon terms
it deems proper, strike any irrelevant, false, or improper matter inserted in
any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may
also strike all or any part of any pleading not drawn or filed in conformity with
California law, a court rule, or an order of the court. (Code Civ. Proc.,
§ 436, subd. (b).) An immaterial or irrelevant allegation is one that is
not essential to the statement of a claim or defense; is neither pertinent to
nor supported by an otherwise sufficient claim or defense; or a demand for
judgment requesting relief not supported by the allegations of the
complaint. (Code Civ. Proc., 431.10, subd. (b).) The grounds for
moving to strike must appear on the face of the pleading or by way of judicial
notice. (Code Civ. Proc., § 437.)
DISCUSSION
Statute
of Limitations
Real
Parties first argue that Plaintiff’s claims are barred by the applicable
statute of limitations. Real Parties argue that Plaintiff’s claims are challenges
to conditional use permits (“CUPs”) and administrative use permits (“AUPs”)
that were approved in 2020 and 2021. (SAC ¶¶ 21-24.)
In opposition, Plaintiff asserts that it is challenging a condition present in
two of the permits which provides: “This CUP must be reviewed by the Planning
Commission not later than six months after operations commence at the Project
to ensure compliance with the CUP.” (SAC ¶ 27.) Plaintiff alleges that
condition number 49 had a deadline of December 1, 2022. (SAC ¶ 27.)
Government
Code section 65009, subdivision (c)(1)(E), provides: “Except as
provided in subdivision (d), no action or proceeding shall be maintained in any
of the following cases by any person unless the action or proceeding is
commenced and service is made on the legislative body within 90 days after the
legislative body's decision . . . [t]o attack, review, set aside, void, or
annul any decision on the matters listed in Sections 65901 and 65903, or to determine the reasonableness, legality, or
validity of any condition attached to a variance, conditional use permit, or
any other permit.”
Real Parties argue that Plaintiff’s complaint should be read as seeking
to set aside the underlying conditions. However, in ruling on demurrer, courts
“accept as true the properly pled factual allegations of the complaint[,
and] …the allegations of the complaint must be read in the light most
favorable to the plaintiff and liberally construed with a view to attaining
substantial justice among the parties.” (Venice Town Council, Inc. v. City
of Los Angeles (1996) 47 Cal.App.4th 1547, 1557.) Although Plaintiff’s allegations
could be read to challenge the underlying conditions, the court declines to
follow Real Parties’ perspective. Plaintiff alleges that Respondent failed to
comply with a condition of the underlying permits. (SAC ¶ 27.) Further, Plaintiff seeks a
writ of mandate challenging the implementation of the specific condition of the
permits rather than the underlying permits themselves. (SAC at pp. 21-22.)
Plaintiff’s claims are based on a
condition to a permit with an alleged deadline of December 1, 2022. (SAC ¶ 27.) Plaintiff alleges that Defendants held
a hearing on December 13, 2022, but Plaintiff alleges the hearing was
insufficient. (SAC ¶¶ 28-29.) As alleged, Plaintiff’s claim is a timely
challenge to a condition of a previously granted permit.
Demurrer
to Plaintiff’s First Cause of Action for Writ of Mandate
Real
Parties and Defendants separately demurrer to Plaintiff’s first cause of action
on the grounds that Plaintiff fails to allege facts sufficient to meet the
requirements of issuance of a writ of mandate.
“ ‘Two
basic requirements are essential to the issuance of the writ: (1) A clear,
present and usually ministerial duty upon the part of the respondent
[citations]; and (2) a clear, present and beneficial right in the petitioner to
the performance of that duty [citation]. [Citation.]’ ” (Monterey
Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76
Cal.App.5th 1, 18.)
“ ‘A ministerial
duty is an obligation to perform a specific act in a manner prescribed by law
whenever a given state of facts exists, without regard to any personal judgment
as to the propriety of the act.’ ” (Rutgard v. City of Los Angeles (2020)
52 Cal.App.5th 815, 824.) “Mandate will not
issue to compel action unless it is shown the duty to do the thing asked for is
plain and unmixed with discretionary power or the exercise of judgment.” (Unnamed
Physician v. Board of Trustees of Saint Agnes Medical Center (2001) 93
Cal.App.4th 607, 618.)
Plaintiff’s writ
of mandate is based on its claim that Respondent failed to comply with condition
number 49, which allegedly provides: “This CUP must be reviewed by the Planning Commission not later
than six months after operations commence at the Project to ensure compliance
with the CUP.” (SAC ¶ 27.) Plaintiff alleges Respondents failed to comply with
condition number 49 because it merely received and filed a staff report. (SAC ¶
28.) Plaintiff seeks a writ requiring Respondents to set aside the staff
report, enforce the drive through plan of the administrative use permit, and comply
with Monterey Park Municipal Code sections. (Complaint at pp. 21-22.)
As a preliminary note, Plaintiff’s argument
that discretionary actions may be subject to a writ (Opposition to Respondent
at p. 15:16-25) is rejected because a ministerial duty is a requirement for the
issuance and a lack of one is grounds for demurrer. (See Monterey
Coastkeeper, supra, 76 Cal.App.5th at pp. 18-20.)
Additionally, Plaintiff seeks court
intervention in an area where Respondents have discretion. In both its SAC and
oppositions, Plaintiff asserts it is seeking a writ to enforce condition number
49. However, as alleged, condition number 49 requires Respondent to review the
CUP to ensure compliance. (SAC ¶ 27.) Plaintiff alleges that Respondents failed
to comply by simply receiving and filing a staff report (SAC ¶¶ 5 and 28.) Plaintiff’s
argument, by its very nature, challenges how Respondent acted and argue that
Respondent should have acted differently. However, Plaintiff’s allegations
regarding the language of condition number 49 do not allege that Respondents
were required to act in a prescribed manner in its adherence to the condition,
a necessary requirement for issuance of a writ.
Further, neither of the municipal code sections
cited by Plaintiff create a ministerial duty for Respondent to act in a certain
manner. First, Monterey Park Municipal Code section 21.32.150 provides that
Respondents ”may conduct a noticed public hearing to determine whether [a
conditional use permit] should be revoked” upon recommendation by the City
Planner, Planning Commission, or the City Council. The language of section
21.32.150 provides discretion for Respondents to act. Further, Plaintiff does
not allege that an appropriate individual made a recommendation or passed a
motion as required by the code section. Additionally, Monterey Park Municipal
Code section 10.52.060, which provides that “[n]o person shall
stop, stand or park a vehicle in any alley for any purpose other than the
loading or unloading or persons or materials” does not create a ministerial
duty for Respondents to review the conditional use permit in a certain way or
manner.
Plaintiff
fails to allege a ministerial duty. Thus, Real Parties and Defendants’
demurrers to Plaintiff’s first cause of action are sustained.
Nuisance
Claims
Plaintiff’s
second, third, and fourth causes of action are based on a claim for nuisance.
Real Parties and Defendants separately object to Plaintiff’s causes of action.
Real Parties contend Plaintiff’s causes of action fail to state a claim.
Defendants contend they are immune from liability.
“Nuisances are
defined by statute: ‘Anything which is injurious to health ... or is indecent
or offensive to the senses, or an obstruction to the free use of property, so
as to interfere with the comfortable enjoyment of life or property ... is a
nuisance.’ (Civ. Code, § 3479.) Nuisances can be either public or
private. ‘A public nuisance is one which affects at the same time an entire community
or neighborhood, or any considerable number of persons, although the extent of
the annoyance or damage inflicted upon individuals may be unequal.’ (Id., § 3480.) Any other nuisance is a private
nuisance. (Id., § 3481.)” (Orange County Water Dist. v. Sabic
Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 402.)
Plaintiffs must plead and prove
three elements to recover under a claim for private nuisance. “ First, the
plaintiff must prove an interference with his use and enjoyment of its
property. Second, the invasion of the plaintiff's interest in the use and
enjoyment of the land must be substantial, i.e.,
it caused the plaintiff to suffer substantial actual damage. Third, the
interference with the protected interest must not only be substantial, it must
also be unreasonable, i.e., it must be of such a nature,
duration, or amount as to constitute unreasonable interference with the use and
enjoyment of the land.” (Today’s IV, Inc. v. Los Angeles County Metropolitan
Transportation Authority (2022) 83 Cal.App.5th 1137, 1176.)
Real Parties argue that Plaintiff’s
claim fails because Plaintiff fails to allege a property interest and fails to
establish a substantial and significant interference. Plaintiff alleges that it
owns property located at 2000-2276 S. Atlantic Boulevard, Monterey Park,
California 91754. (Id. ¶ 7.) Plaintiff also alleges that the conditions caused by Real
Parties and Defendants substantially and unreasonably interferes with its use
of its property. (SAC ¶ 67).
Real Parties arguments involve whether Plaintiff can factually establish
sufficient interference. However, at the pleading stage, Plaintiff’s arguments
are sufficient.
Government Immunity
Defendants broadly claim they are
immune from liability for Plaintiff’s claims.
“Under the Government Claims Act,
the City, as a public entity, is not liable for injuries arising out of acts or
omissions of its employees, except as provided by statute. (Gov. Code, § 815, subd. (a).)” (Haacala v. Bird Rides,
Inc. (2023) 90 Cal.App.5th 292,
304.) “A public entity is not liable for an injury caused by adopting or
failing to adopt an enactment or by failing to enforce any law.” (Gov. Code § 818.2.)
Government Code
section 815, which limits government tort liability, does not bar nuisance
actions against public entities to the extent such actions satisfy the
requirements of Civil Code section 3479. (Friends
of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 159, fn. 2.)
“Anything which is injurious to health, including, but not limited to,
the illegal sale of controlled substances, or is indecent or
offensive to the senses, or an obstruction to the free use of property, so as
to interfere with the comfortable enjoyment of life or property, or unlawfully
obstructs the free passage or use, in the customary manner, of any navigable
lake, or river, bay, stream, canal, or basin, or any public park, square,
street, or highway, is a nuisance.” (Civ. Code § 3479.)
Defendants
generally argue that each cause of Plaintiff’s causes of action against them
fail because they are immune. However, Defednants do not address the authorities
that provide that they may be sued for nuisance. Further, in reply, Defendants
argue that Plaintiff’s claims fail because they seek monetary damages. The
court recognizes that Plaintiff’s SAC fails to allege a statutory basis for a
monetary claim against Defendants. However, “[o]rdinarily, a general demurrer
does not lie as to a portion of a cause of action, and if any part of a cause
of action is properly pleaded, the demurrer will be overruled.” (Fire ins.
Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) Defendant’s
demurrer based on immunity is based on a piecemeal approach to Plaintiff’s
allegations, and Defendants fail to address relevant authority that provides
nuisance claims, based on statute, may be brought against public entities.
Uncertainty
Real Parties
argue that Plaintiff’s Unfair Competition Law (“UCL”) claim fails because it
was not alleged with the required specificity.
“ ‘By proscribing
“any unlawful” business practice, “[Business and Professions Code] section
17200 ‘borrows’ violations of other laws and treats them as unlawful practices”
that the [UCL] makes independently actionable.’ [Citation.] ‘An unlawful
business practice under [Business and Professions Code] section 17200 is “ ‘an
act or practice, committed pursuant to business activity, that is at the same
time forbidden by law. [Citation.]’ ” ’ ” (Durell v. Sharp Healthcare
(2010) 183 Cal.App.4th 1350, 1361.)
Real Parties
reliance on Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92 is
misplaced. The Court in Schulz held that the plaintiff was required to
plead he suffered injury in fact or lost money or property against the
defendants to establish standing. The court did not, as Plaintiff contend, set
a specificity requirement for Plaintiff’s pleadings. Plaintiff alleges Real
Parties actions caused it to suffer an injury in fact. (SAC ¶ 108.) Plaintiff’s allegations, at the
pleading stage, are sufficient.
Motion to Strike
Real Parties also move to strike
portions of Plaintiff’s SAC. However, most of Real Parties arguments rely on an
interpretation of fact. For example, Plaintiff alleges that Plaintiff’s
complaint should be stricken because external facts establish Plaintiff’s
nuisance or UCL claims are not tenable. However, this is not proper at the
pleading stage. “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.” (Fremont Indemnity Co. v. Fremont
General Corp. (2007) 148 Cal.App.4th 97, 114.)
Additionally, the
Court recognizes that in UCL cases, “ ‘[p]revailing plaintiffs are generally
limited to injunctive relief and restitution. [Citations.] Plaintiffs may not
receive damages... or attorney fees.’ ” (Zhang v. Superior Court (2013)
57 Cal.4th 364, 371.) However, Real Parties seek to strike Plaintiff’s entire
recovery for damages without any discussion of whether Plaintiff may be
entitled to damages based on another cause of action.
Real Parties’
motion to strike is denied.
CONCLUSION
Real Parties and Defendant’s demurrers to Plaintiff’s
first cause of action for writ of mandate are SUSTAINED with 15 days leave to
amend.
The remainder of Real Parties and Defendant’s demurrers
are OVERRULED.
Real Parties’ motion to strike is DENIED.
Moving
Party to provide notice.
Dated: November 14,
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. alhdeptx@lacourt.org