Judge Mary H. Strobel, Case 20STCP03490 2022-08-30 Tentative Ruling

Petitioner Friends of Westwanda Drive (“Petitioner”) moves for an order “to determine Respondent City of Los Angeles’ compliance with the peremptory writ of mandate.” (Motion (“Mot.”) 2.) Petitioner also requests an order that “(1) directs the City to proceed with the revocation of the challenged permits; (2) set aside the decision of the Board of Building and Safety Commissioners.” (Mot. 5.) Respondent City of Los Angeles (“Respondent” or “City”) opposes the motion. No opposition has been received from Real Parties in Interest Karla Shahin and Armen Melkonians (“Real Parties”).

On October 22, 2020, Petitioner filed its petition for writ of mandate. As pleaded, the first cause of action is for traditional mandate under CCP section 1085. The second cause of action is for administrative mandate under CCP section 1094.5.

On February 7, 2022, the court issued its ruling on the petition. The court ruled that “no substantial evidence supports LADBS’s determination that the 20- foot requirement of sections 12.21.C.10(i)(3) was satisfied with respect to the subject Property.” (Minute Order dated 2/7/22 at 13.) The court also ruled that the BBSC decision must be set aside because it was based on the erroneous conclusion that “LADBS had authority to rely upon the BOE clearances to issue the Building Permits because the clearances had not been rescinded by BOE.” (Id. at 9, 13-15.) The court granted the first and second causes of action and set a hearing for March 3, 2022, to discuss appropriate remedy.

On March 10, 2022, the court held a hearing regarding the appropriate remedy. Having considered the parties’ supplemental briefs, the court ruled as follows: “The court will issue a writ directing LADBS to rescind the Building Permits; directing BBSC to set aside its decision affirming LADBS's issuance of the Building Permits. Should the City take further action, it must be in accordance with this ruling.” (Minute Order dated 3/10/22.) With respect to the new BOE clearance and supplemental building permit issued on March 7 and 8, 2022, the court ruled as follows: “Real party in interest presents new evidence the day before the hearing purporting to show that new clearances have been obtained. Petitioner has not had a chance to consider the new evidence and the record has not been augmented. The court's decision is based on the BBSC decision that was challenged. The court states no opinion on how the City may exercise its discretion in the future, except it is to be consistent with the court's opinion.” (Ibid.)

The court entered judgment in favor of Petitioner on May 12, 2022. The court adopted the February 7, 2022, and March 10, 2022, minute orders as the final ruling. Also on May 12, 2022, the court issued a writ of mandate, which ordered Respondent as follows:

1. Within thirty (30) days after service of this Writ, if Respondent has not already done so, revoke the Building Permits for the construction of the proposed single-family residence at 10034 Westwanda Drive, Los Angeles, CA (“Project”), including, but not limited to, Building Permit No. 16010-10000-06248, Building Permit No. 16020-10000-04056 and Building Permit No. 16030-10000-09597 (the Building Permits).

2. Respondent is further ordered to set aside the decision of the Board of Building and Safety Commissioners (“BBSC”) in connection with the appeal made in Board File No. 20032 which related to finding no error or abuse of discretion in issuing the Building Permits.

3. Nothing in this Writ shall limit or control in any way the discretion legally vested in Respondent.

4. You are further commanded to make and file a Return to this Writ within sixty (60) days after its issuance, setting forth those actions taken to comply with this Writ, or-that an appeal from the Judgement herein has been or will be filed. Any objection to said Return shall be filed no later than thirty (30) days after the date of service of the Return.

On June 1, 2022, Real Parties filed a notice of appeal of the judgment granting writ of mandate.

On July 15, 2022, Respondent filed its “First Return to Peremptory Writ of Mandate.” The return states, in pertinent part:

In order to comply with the Judgment and Writ, the City issued a Notice of Intention to Revoke Permits to Real Parties in Interest on May 24, 2022 with permits to be revoked by June 11, 2022 (30- day compliance deadline). The permits to be revoked were Building Permits No. 16010-10000-06248, 16020-10000-04056, and 16030-10000-09597 for the property at 10034 Westwanda Drive.

On June 1, 2022, Real Parties filed a Notice of Appeal which acts as a stay on all proceedings, including enforcement of the Writ. Hayworth v. City of Oakland, 129 Cal. App. 3d 723, 727 (1982).

Therefore, on June 9, 2022, the City removed the Notice of Intent to Revoke Permits to return to the status quo. This allows Real Parties to resume work while the appeal is pending.

On August 5, 2022, Petitioner filed and served, by electronic mail, the instant motion to determine Respondent’s compliance with the writ. The court has received Respondent’s opposition and Petitioner’s reply. No opposition from Real Parties has been received.

The motion was served by electronic mail on August 5, 2022. Service by electronic mail extends “any period of notice” by two court days. (CCP § 1010.6(a)(4)(B).) Accordingly, including the 16 days required for a noticed motion, Plaintiff needed to serve the motion by electronic mail on or before August 4, 2022, for a hearing on August 30, 2022. (CCP § 12c; § 1005(b); § 1010.6(a)(4)(B).) The motion was untimely served by one day. Respondent has waived the defect by filing an opposition on the merits. Real Parties have not. At the hearing, Real Parties’ counsel should indicate whether a continuance is requested for Real Parties to file an opposition. Alternatively, the court is prepared to issue a tentative ruling on the motion should Real Parties waive the defect in service of the motion.

“The trial court that issues a writ of mandate retains continuing jurisdiction to make any orders necessary for complete enforcement of the writ.” (Los Angeles Internat. Charter High School. V. Los Angeles Unified School Dist. (2012) 209 Cal.App.4th 1348, 1355.) CCP section 1097 “authorizes three methods by which a court may enforce a peremptory writ of mandate: (1) a court may impose a fine not exceeding $1,000; (2) a court may order the disobedient party to be imprisoned until the writ is obeyed; and (3) a court may make any order necessary and proper to enforce the writ.” (King v. Woods (1983) 144 Cal.App.3d 571, 577-578.)[1]

In the motion and objections to return, Petitioner argues that Respondent violated the automatic stay of “agency proceedings” in CCP section 1094.5(h)(3) when it removed the “Notice of Intent to Revoke Permits” in response to Real Parties’ appeal. (Mot. 3-5; Objections to Return 2-3.)

As Petitioner concedes in reply, section 1094.5(h)(3) is inapplicable here. (Reply 4.) Specifically, section 1094.5(h) only applies to “the administrative order or decision of any licensed hospital or any state agency made after a hearing required by statute to be conducted under the Administrative Procedure Act.” (§ 1094.5(h)(1).) The issuance of buildings permits by LADBS and the subsequent decision of BBSC are not an administrative order or decision of a licensed hospital or state agency subject to the APA.

In reply, Petitioner makes new arguments. Petitioner contends that the automatic stay of CCP section 916 does not apply to the writ of mandate because “it is a prohibitory injunction.” (Reply 4.) Petitioner also contends that CCP section 1094.5(g) “stays reliance on the City’s upholding of the challenged building permits.” (Reply 4-5.)

“The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Petitioner does not show good cause to raise new arguments in reply. The return was filed July 15, 2022. Petitioner should have developed all arguments in the motion filed August 5, 2022, so that Respondent and Real Parties could address them in a written opposition. The court could deny the motion on procedural grounds because Petitioner relies on arguments first made in reply.

Nonetheless, in the interests of judicial efficiency, the court is inclined to consider Petitioner’s new reply arguments. Respondent and Real Parties may respond at the hearing or may request a continuance to file supplemental oppositions.

CCP section 1094.5(g) provides, in pertinent part: “Except as provided in subdivision (h), the court in which proceedings under this section are instituted may stay the operation of the administrative order or decision pending the judgment of the court, or until the filing of a notice of appeal from the judgment or until the expiration of the time for filing the notice, whichever occurs first…. If an appeal is taken from the granting of the writ, the order or decision of the agency is stayed pending the determination of the appeal unless the court to which the appeal is taken shall otherwise order.”

Here, as discussed in the court’s ruling on submitted matter dated February 7, 2022, BBSC held a hearing on Petitioner’s appeal and took evidence, as required by LAMC sections 98.0403.1 and 98.0403.2(b). Accordingly, the court’s writ review of the BBSC decision was governed by CCP section 1094.5. (See Minute Order dated 2/7/22 at 7-8.) The stay provisions of section 1094.5(g) apply to the court’s granting of a writ directing BBSC to set aside its decision. Accordingly, when Real Parties appealed the “judgment granting peremptory writ of mandamus,” see Notice filed June 1, 2022, the BBSC decision was “stayed pending the determination of the appeal unless the court to which the appeal is taken shall otherwise order.” The Court of Appeal has not lifted the stay.

However, the stay of the BBSC decision does not support Petitioner’s contention that Respondent failed to comply with the writ. Because the BBSC decision is stayed, Respondent cannot set aside the BBSC decision pending Real Parties’ appeal. Furthermore, BBSC determined that LADBS did not err or abuse its discretion in issuing the Building Permits to Real Parties. The status quo before the BBSC decision was LADBS issued the Building Permits; Petitioner appealed that decision to LADBS; and LADBS denied the appeal. The stay of the BBSC decision reverts to this status quo, in which the Building Permits were issued to Real Parties.

While unclear, Petitioner may contend that CCP section 1094.5(g) should also stay LADBS’s issuance of the Building Permits. (Reply 5.) Such contention would be incorrect because, as the court ruled on February 7, 2022, the petition for relief against LADBS is governed by CCP section 1085 and not section 1094.5. (Minute Order dated 2/7/22 at 7.) Accordingly, the stay provisions of section 1094.5(g) pending appeal do not apply to the administrative action of LADBS. Any stay requirements with respect to the writ directing LADBS to “revoke” the permits must be analyzed separately from the stay of the BBSC decision.

The Writ Directing LADBS to “Revoke” Building Permits is Mandatory and Is Automatically Stayed Pending Appeal

Because CCP section 1094.5(g) does not apply, the court’s writ directing LADBS to revoke the Building Permits is governed by the general stay procedures in CCP section 916, et seq.

CCP section 916(a) states that, with exceptions not applicable here, “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”

Respondent cited and relied upon Hayworth in its return and opposition to the instant motion. However, presumably because Petitioner did not raise the issue in the motion, Respondent did not address whether the writ of mandate issued by the court should be considered prohibitory or mandatory.

A recent decision of the California Supreme Court confirms that the automatic stay of section 916 applies to a trial court’s issuance of a writ of mandate that is mandatory in nature, but not to a writ that is “prohibitory.” (See generally Daly v. San Bernardino County Bd. of Supervisors (2021) 11 Cal.5th 1030.) In deciding whether a writ issued by the trial court was stayed pending appeal, the Supreme Court stated: “In California, a long-established set of rules governs stays of injunctive orders — that is, orders to do something or to refrain from doing something. What rule applies depends on which kind of order it is. An injunction that requires no action and merely preserves the status quo (a so-called prohibitory injunction) ordinarily takes effect immediately, while an injunction requiring the defendant to take affirmative action (a so-called mandatory injunction) is automatically stayed during the pendency of the appeal.” (Id. at 1035.)

In Daly, an applicant for a seat on a county board of supervisors filed a petition for writ of mandate seeking a judicial determination that the initial nomination process violated the Brown Act. The trial court granted the mandate petition and issued a writ directing the board to rescind appointment of another applicant as a board member (the real party, Rowe) and replace that member with one to be appointed by the governor. The board and real party appealed and filed a petition for writ of supersedeas, which the Court of Appeal denied. The Supreme Court reversed, holding that the trial court’s writ was mandatory and automatically stayed, and that the Court of Appeal erred by denying the petition for writ of supersedes effectuating an automatic stay.

The California Supreme Court reasoned, in part, as follows: “[T]he core rationale underlying the mandatory-prohibitory distinction was based on an abiding concern with preserving the status quo pending appeal. The idea was that a prohibitory injunction is exempt from stay because such an injunction, by its nature, operates to preserve the status quo; by definition such an injunction prevents the defendant from taking actions that would alter the parties' respective provisions. To stay enforcement of such an order pending appeal would not preserve the status quo but instead invite its destruction; a stay would leave the parties free to alter conditions during the appeal, with sometimes irreversible consequences…. Not so with the injunction that mandates the performance of an affirmative act — the so-called mandatory injunction. Such an injunction, by definition, commands some change in the parties' positions. The cases hold that before such orders are executed and the defendant must detrimentally alter its position, the defendant is entitled to know whether the order is correct.” (Daly, supra at 1041-42.)

Here, the court ordered LADBS to “revoke” the Building Permits. Similar to the order in Daly directing the board to “rescind” the appointment, the court ordered LADBS to take an affirmative act that would change the status quo. Before the court issued the writ, LADBS had issued Building Permits to Real Parties. The order directing LADBS to “revoke” such permits was the primary function of the writ and was not merely incidental to the writ. Accordingly, the writ was mandatory and was stayed pending appeal.

The writ issued by the court was mandatory and was automatically stayed on appeal. Thus, Petitioner does not show that Respondent violated the writ by declining to revoke the Building Permits pending appeal. Indeed, the writ issued by the court mandated Respondent to file a return “setting forth those actions taken to comply with this Writ, or that an appeal from the Judgment herein has been or will be filed.” (bold italics added.) Respondent filed a return that complied with this order. In these circumstances, Petitioner does not show grounds for an enforcement order under CCP section 1097.

[1] CCP section 1097 provides in full: “If a peremptory mandate has been issued and directed to an inferior tribunal, corporation, board, or person, and it appears to the court that a member of the tribunal, corporation, or board, or the person upon whom the writ has been personally served, has, without just excuse, refused or neglected to obey the writ, the court may, upon motion, impose a fine not exceeding one thousand dollars. In case of persistence in a refusal of obedience, the court may order the party to be imprisoned until the writ is obeyed, and may make any orders necessary and proper for the complete enforcement of the writ.”