Judge Mary H. Strobel, Case 20STCP04014 2023-05-02 Tentative Ruling

Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.

Petitioners Anton Karraa, Rabadi Service Station, Inc., J. Keith Stephens, and Virtual Media Group, Inc. (“Petitioners”) petition for a writ of mandate directing Respondent City of Los Angeles (“Respondent” or “City”), as follows:

A. Cease issuing any permits relating to Billboards without proof of consent by the owner of record of the real property to which the permit relates.

B. Issue a permit under LAMC section 91.6216.4. to allow “Alterations, Repairs or Rehabilitation” of the First Billboard [located at located at 6301 Santa Monica Boulevard] so long as the work does not exceed “50 percent of the replacement cost of both the sign and sign support structure.”

Petitioner Karraa is the president of Petitioner Rabadi service Station, Inc. (“Rabadi”), which owns and operates a gas station located at 6301 Santa Monica Boulevard (“Service Station Property” or “Property”). (Pet. ¶ 1; Oppo. 3:21-26; AR 124, 160.)

An off-site advertising sign was constructed at the Property in or about 1997.[1] Until about September 1, 2019, Respondent Outfront Media, LLC (“Outfront”) leased the sign for operation of a double-sided billboard (“Billboard”). (AR 113, 124; Pet. ¶ 2; Oppo. 3-4.)

In or about 2018, Rabadi sought to execute a new lease with Outfront, as the lease had expired and converted to a month-to-month tenancy. (AR 124.) After Rabadi and Outfront could not agree on a new lease, Rabadi gave Outfront a 30-day notice of termination on or about August 1, 2019. (AR 128-129.)

On August 19, 2019, Outfront applied for a pre-inspection for the “demolition of (2) 14x48 Billboards on a single pole 30’ above grade,” referring to the Billboard at issue in this case. (AR 54, 113.) The permit application refers to Outfront as the “applicant,” “contractor,” and “tenant” and to Rabadi as the “property owner.” (AR 54.) On August 20, 2019, the pre-inspection was performed and a site inspection report was issued. On August 22, 2019, the City issued a permit for demolition of the Billboard. (AR 113.)

The administrative record contains disputed evidence of the following. On August 20, 2019, Petitioner J. Keith Stephens, on behalf of Petitioner Karraa, mailed a letter to the Los Angeles Department of Building and Safety (“LABDS”) stating in pertinent as follows:

As owner of the above referenced property, I hereby grant to J. Keith Stephens, as my authorized agent, full and complete authority to act on my behalf….

I operate a gas station on the site …. I have learned that the billboard company tenant has applied for a demolition permit without my authority as the property owner. I do not authorize issuance of the demolition permit to the billboard company and want it cancelled if it has already been issued….

The letter appears to be signed by Karraa and also shows a notarization by a notary public on August 20, 2019. (AR 160.)

In a declaration, Stephens states that he also telephoned LADBS on August 20, 2019, and spoke with an individual who identified himself as Sam Chang. According to Stephens, Chang claimed that the City would not issue a permit without property owner consent and stated that he would investigate the matter. (AR 130.) The record shows that Sam Chang was listed as an LADBS contact on Outfront’s application for a demolition permit. (AR 171.)

At a subsequent hearing before the Board of Building & Safety Commission (“BBSC” or “Board”) on December 7, 2021, LADBS representative Hector Buitrago stated the following with respect to Karraa’s August 20, 2019, letter: “Now this letter we first saw it about two months ago. Again the permit was issued about two years ago. This letter was addressed to nobody in particular, and we spoke to all the supervisors and the counter areas that would have been the likely recipients of this letter and we found nobody that could say that they had seen this letter before.” (AR 382.)

The record includes a PowerPoint presentation to BBSC, apparently prepared by LADBS, which states that the August 20, 2019, letter was “submitted to LADBS on Oct 29, 2021.” (AR 195.) The record also includes a statement of Sam Chang dated November 24, 2021, which states that Chang is a 22-year employee and plan check engineer with LADBS. In response to Stephens’ declaration, Chang asserted: “I can undoubtedly state that I do not recall ever having these conversations with Mr. Stephens or making such claims. Until now, I’ve been unaware of the issues surrounding this property location and the subject demolition permit.” (AR 163.)

On or about October 29, 2019, Outfront performed demolition work on Billboard. (AR 113, 200, 387.) The demolition work was “signed off by the LADBS inspector” on October 29, 2019. (AR 113.) Apparently, Petitioners did not file a legal action seeking an injunction against the demolition permit or Outfront performing demolition work on the Property. (See AR 123-136.)

Pursuant to LADBS’s “long-time policy,” Outfront demolished only the above-grade portion of the Billboard. As stated by LADBS in a report to BBSC, “the sign’s supporting pipe was cutoff at grade level and the portion of the pipe underground was allowed to remain in place.” (AR 114.) At the BBSC hearing, Buitrago explained how a typical billboard sign is constructed with a steel pole with about 30 feet above ground and about 30 feet below ground. (AR 385.) He stated, “So it’s about half and half, and it’s surrounded by concrete.” (Ibid.) Buitrago explained the LADBS practice of demolishing only the above-grade part of the sign and pole, as follows:

Now removing the concrete and the steel pipe would require, you know, significant excavation. It would be considerably more work and especially if it occurs near buildings, near property lines. You know, there’s a chance for – for damage. So in most cases applicants as well as the department are perfectly okay with leaving this structure underground. Because it really causes no harm. It makes no difference, and removing it would be very expensive and very disruptive to – to the business. So in part for safety reasons LADBS customarily and for many years has accepted this as – as a method for demolition of billboards

The City required Outfront to weld a plate on top of the open pipe to prevent anyone from falling in and injuring themselves. (AR 387.) The record contains a photograph showing the “welded round plate.” (AR 200, 173.)

On or about January 23, 2020, Stephens, on behalf of Karraa and Rabadi, filed with LADBS an application to “alter, repair or rehabilitate” the Billboard by replacing only the above ground portions that had been removed by Outfront. Stephens declares that the application received City Application / Permit number 20048-30000-00178. (AR 132.)

On February 28, 2020, LADBS denied Petitioners’ application “stating that a new off-sign sign could not be allowed.” (AR 113; see also AR 132.)

On March 22, 2021, Petitioner Stephens, on behalf of Rabadi, filed a Request for Modification of Building Ordinances challenging the denial of the application to alter, repair, or rehabilitate the Billboard pursuant to LAMC sections 91.6216.4.2 and 91.6216.4.3. Stephens also asserted that LADBS erred by issuing a demolition permit to Outfront without the property owner’s consent, in violation of LAMC section 91.103.2. (AR 66.) LADBS denied this appeal on or about May 7, 2021. (Ibid.)

Petitioners appealed the LADBS’s actions to the BBSC. In a staff report to BBSC, LADBS described the issues on appeal as follows: “Determine that [LADBS] erred or abused its discretion by 1) issuing a demolition permit to Outfront … with the actual knowledge that the owner of the property had not consented and 2) denying the owner of the property a permit pursuant to sections 91.6216.42 and 91.6216.43 to reconstruct the sign after demolition by using the portion of the steel pole from the 1997 sign that was allowed to be left below the ground.” (AR 112-113.)

A hearing on the appeal was held before BBSC on December 7, 2021. (AR 369-393.) Petitioners and LADBS submitted testimony and documentary evidence was considered. On December 7, 2021, BBSC issued a determination letter finding that “LADBS properly complied with all regulations and policies.” (AR 164.) Apparently, no other findings were made by BBSC.

On December 7, 2020, Petitioners filed a verified petition for writ of mandate and a complaint for violation of unfair competition law, waste, and private nuisance (“Pet.”).

On February 19, 2021, Outfront filed a demurrer, motion to strike, and anti-SLAPP special motion to strike.

On March 23, 2021, at the trial setting conference, the court stayed the second, third, and fourth causes of action until the writ cause of action is ruled on by the court. In light of the stay, the court took off calendar Outfront’s demurrer, motion to strike, and anti-SLAPP motion.

On February 27, 2023, Petitioners filed their opening brief in support of the petition. The court has received Respondent’s opposition, Petitioners’ reply, and the administrative record.

Petitioners have not filed proof of service of the opening brief or reply in support of the writ petition. It is unclear if Petitioners timely served the opening brief and reply on Outfront Media, LLC. Counsel should address this issue at the hearing

The administrative record lodged with the court is Bates-stamped AR 1-393. Pages 377-393 show part of a transcript for the BBSC meeting held December 7, 2021. The full transcript is not submitted with the record. Neither party has argued that material found later in the transcript is relevant to this writ petition.

Petitioners state that the petition is brought pursuant to CCP sections 1085 and 1094.5. (Opening Brief (“OB”) i.) Respondent states that the court’s review is solely under CCP section 1094.5. (Oppo. 2-3.) Neither party analyzes whether section 1085 or section 1094.5 applies to the specific claims made in Petitioners’ writ cause of action. (See Pet. ¶¶ 54-60.)

“[J]udicial review via administrative mandate is available ‘only if the decision[] resulted from a 'proceeding in which by law: 1) a hearing is required to be given, 2) evidence is required to be taken, and 3) discretion in the determination of facts is vested in the agency.’ Thus, ordinary mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing.” (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.) Administrative mand te “is available if a hearing is required by statute, an organization's internal rules and regulations, or due process.” (Pomona College v. Sup.Ct. (1996) 45 Cal.App.4th 1716, 1727, fn. 10.) Also, “administrative mandamus under section 1094.5 applies to ‘quasi-judicial’ decisions, which involve ‘the actual application of such a rule to a specific set of existing facts.’” (Beach & Bluff Conservancy v. City of Solana Beach (2018) 28 Cal. App. 5th 244, 259.)

In the petition, opening brief, and reply, Petitioners request that the court “issue a writ of mandate requiring the LADBS to issue to them a permit to repair and rehabilitate the Subject Billboard in conformity with the requirements of section 91.6216.4.” (OB 13; Reply 8; Compl. p. 25, Prayer.) The prayer also seeks a writ commanding City to “Cease issuing any permits relating to Billboards without proof of consent by the owner of record of the real property.” (Compl. p. 25, Prayer.)

LADBS’s permitting decisions were reviewed by BBSC. An administrative hearing was held before BBSC and evidence was taken with respect to Petitioners’ administrative appeal. To the extent Petitioners challenge the BBSC decision denying the appeal, this action is governed by CCP section 1094.5. No hearing was held or required before LADBS. To the extent Petitioners seek a writ commanding LADBS or City to take certain action, CCP section 1085 governs. As discussed below, the petition raises purely legal issues of statutory construction, which the court decides de novo. The court reaches the same result on the petition regardless of whether CCP section 1094.5 or 1085 governs.

Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

CCP section 1094.5 does not specify which cases are subject to independent review, leaving that issue to the courts. (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 811.) “The ultimate question in each case is whether the affected right is deemed to be of sufficient significance to preclude its extinction or abridgement by a body lacking judicial power.” (Benetatos v. City of Los Angeles (2015) 235 Cal.App.4th 1270, 1281.)

Petitioners contend that the independent judgment test should apply to administrative fact findings because the “Billboard was constructed in 1997 by Outfront’s predecessor in interest and has been in operation for more than a quarter of a century.” (OB 5.) The court disagrees. As discussed below, the petition for writ of mandate is moot to the extent Petitioners challenge the issuance of the demolition permit to Outfront. Accordingly, the court need not decide whether the issuance of that demolition permit implicates a fundamental, vested right of Petitioners. Petitioners do not have a fundamental vested right to alter, repair, or rehabilitate a demolished billboard pursuant to LAMC sections 91.6216.4.2 and 91.6216.4.3. The denial of Petitioners’ application for such a permit is not similar to Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1529, in which the city’s decision would have resulted in the loss of owner’s 35-year-old tavern, a business in which the owner had recently spent $1.75 million to refurbish.

The court applies the substantial evidence test to any administrative fact findings. “Where, as here, a land use decision is challenged by administrative mandamus, courts are to apply the substantial evidence standard of review.” (See Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board (2002) 104 Cal. App. 4th 575, 584-85), or evidence of ponderable legal significance which is reasonable in nature, credible, and of solid value. (Mohilef v. Janovici (1996) 51 Cal. App. 4th 267, 305 n. 28.) “Courts may reverse an [administrative] decision only if, based on the evidence …, a reasonable person could not reach the conclusion reached by the agency.” (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)

“[A] trial court must afford a strong presumption of correctness concerning the administrative findings.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817; see also Evid. Code § 664.) Petitioners bear the burden of proof to demonstrate, by citation to the administrative record, that substantial evidence does not support the administrative findings. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal. App. 2d 129, 137.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.)

“‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’ …. Interpretation of a statute or regulation is a question of law.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)

There are two essential requirements to the issuance of an ordinary writ of mandate under section 1085: (1) a clear, present and ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.)

“Normally, mandate will not lie to control a public agency's discretion, that is to say, force the exercise of discretion in a particular manner. However, it will lie to correct abuses of discretion. In determining whether a public agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency's action, its determination must be upheld. A court must ask whether the public agency's action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.” (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 654.)

Petitioners request that the court “issue a writ of mandate requiring the LADBS to issue to them a permit to repair and rehabilitate the Subject Billboard in conformity with the requirements of section 91.6216.4.” (OB 13; Reply 8; Compl. p. 25, Prayer.) Petitioners contend that the LADBS and BBSC failed to correctly apply LAMC section 91.6216.4 to undisputed facts. (OB 6.) To decide this argument, the court must interpret LAMC section 91.6216.4.

“The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.)

When interpreting a statute, the court must construe the statute, if possible to achieve harmony among its parts. (People v. Hull (1991) 1 Cal. 4th 266, 272.) “When interpreting statutory language, we may neither insert language which has been omitted nor ignore language which has been inserted.” (See People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 282.) “[I]nterpretations which render any part of a statute superfluous are to be avoided.” (Young v. McCoy (2007) 147 Cal.App.4th 1078, 1083.)

To the extent “purely legal issues involve the interpretation of a statute an administrative agency is responsible for enforcing, [the court] exercise[s] [its] independent judgment, ‘taking into account and respecting the agency's interpretation of its meaning.’” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343; see also Yamaha Corp. of America v. State Bd. Of Equalization (1998) 19 Cal.4th 1, 11.) How much weight to accord an agency's construction is “situational,” and depends on the circumstances. (See American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 461-462.)

LAMC section 91.6216, which is titled “Existing Signs,” states in relevant part as follows:

91.6216.1. Existing Sign Rights. Every existing sign and/or sign support structure constructed under a valid permit and used in conformance with these regulations and Department approvals in effect at the time of construction shall be allowed to continue to exist under those regulations and approvals even though subsequent adopted regulations and approvals have changed the requirements.

91.6216.3. Illegal Signs, Construction and Use. Every existing sign and/or sign support structure or portion of a sign and/or sign support structure constructed without a valid building permit shall be made to conform to the current provisions of this Code or shall be demolished and removed. Any use of an existing sign constructed without a valid building permit shall be discontinued.

91.6216.4.1. Alterations, repairs or rehabilitation of any existing sign and/or support structure may be of the same type of construction as the existing sign or sign support structure provided:

1. The aggregate value of the work in any one year does not exceed ten percent of the replacement cost of both the sign and sign support structure; and

2. That there is no increase in sign area or height and no change in the location or orientation of the sign.

91.6216.4.2. Alterations, repairs or rehabilitation of existing sign and/or sign support structures in excess of ten percent of the replacement cost of both the sign and sign support structure may be made provided:

1. That the cost of the work does not exceed 50 percent of the replacement cost of both the sign and sign support structure; and

2. That there is no increase in the sign area or height and no change in the location or orientation of the sign; and

91.6216.4.3. Alterations, repairs or rehabilitation of existing sign and/or sign support structures that exceed 50 percent of the replacement cost of both the sign and sign support structure shall comply with all the requirements of this Code.

Do the Below-Grade Pole and Concrete Components of a Demolished Off-Site Sign Fall Within the Scope of Section 91.6216.4?

Petitioners interpret section 91.6216.4 to mean that the below-grade steel pole and concrete components, which were left after demolition of the Billboard, constitute an “existing sign and/or support structure” that may be altered, repaired, or rehabilitated. (OB 6-12.)

Petitioners cite the declaration of J. Keith Stephens, who has many years of experience in the outdoor advertising industry. (AR 123.) Stephens declares that a typical off-site billboard has both above-ground and below-ground components. (AR 125-128.) The below-grade components of the sign “extend 20 to 30 feet underground and are secured in place with several tons of cement.” (AR 126.) At the BBSC hearing, Buitrago similarly explained how a typical off-site billboard sign is constructed with a steel pole with about 30 feet above ground and about 30 feet below ground. (AR 385.) He stated, “So it’s about half and half, and it’s surrounded by concrete.” (Ibid.)

Section 91.6216.4 distinguishes between an “existing sign and/or sign support structure.” The court must give legal effect to both of these terms. The term “existing sign” reasonably refers either to the entire sign structure or the portion used to display advertising. Since the entire above-ground portion of the Billboard was removed, the remaining below-grade portion cannot be reasonably considered an “existing sign.”

The term “sign support structure” may include the entire pole and concrete structure used to “support” the billboard and advertising display. However, it does not necessarily follow that the term “existing … sign support structure” includes a partially demolished billboard sign in which only the below-grade pole and concrete are remaining.

As Respondent argues, section 91.6216.4 is part of a section of the LAMC titled “Existing Signs” and only authorizes “[a]lterations, repairs or rehabilitation of existing sign and/or sign support structures.” (See Oppo. 5; bold italics added.) The word “existing” is defined as “already or previously in place, before being replaced, altered, or added to.” (Dictionary.com.) The word “existing” modifies both “sign” and “sign support structures.” Its usage implies that the alterations, repairs, or rehabilitation must occur to a support structure that is already “in place.”

Although section 91.6216 itself does not contain a definition of “sign structure,” relevant definitions are found in Article 4 of Chapter 1 of the LAMC, which sets forth sign regulations. Section 14.4.2 defines “off-site sign structure” as “a structure of any kind or character, erected, used or maintained for an off-site sign or signs, upon which any poster, bill, printing, painting, projected image or other advertisement may be placed.” (bold italics added.)

As applied in this case, since only the below-ground portion of the Billboard sign is left after demolition, then there is no “existing” structure “upon which any poster, bill, printing, painting, projected image or other advertisement may be placed.” Indeed, the City required Outfront to weld a plate on top of the open pipe to prevent anyone from falling in and injuring themselves. (AR 387.) The record contains a photograph showing the “welded round plate.” (AR 200, 173.) The existing components cannot “support” any billboard or advertising signs.

Petitioners point out that a main criteria for “whether a permit will issue for ‘alterations, repairs or rehabilitation’ is whether it will cost more that 50 percent of ‘the replacement cost of both the sign and sign support structure.’” (OB 10.) Petitioners also point out that the City Council used three separate words – alterations, repairs, or rehabilitations – to describe the permissible work. (Ibid.) The terms “alterations” and “repairs” suggest a limited scope of work. The term “rehabilitation” means “to restore to a condition of good health, ability to work, or the like.” (Dictionary.com, “rehabilitate”.) The inclusion of the word “rehabilitation” in section 91.6216.4 suggests the City Council intended to permit a broader scope of work, as long as the 50 percent of replacement cost threshold is not exceeded.

However, while “rehabilitation” of an existing support structure may be permitted, use of that term does not show the Council intended to allow “rehabilitation” of the below-grade portion of a pole that cannot “support” a billboard or sign. If the City Council had intended that meaning, which would be noteworthy, it would have demonstrated that intent more clearly. The court “must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.” (People v. Jenkins (1995) 10 Cal.4th 234, 246.)

While not argued by either party, the court notes that section 91.6216.3 distinguishes between “existing sign and/or sign support structure or portion of a sign and/or sign support structure.” (bold italics added.) Thus, the City Council has shown that it will specifically refer to a “portion of a sign support structure” when it intends to do so. Section 91.6216.3 is consistent with the court’s interpretation of the term “existing … sign support structure” in section 91.6216.4 to refer to the complete support structure, including both the above- and below-ground components.

In the administrative proceedings, LADBS interpreted section 91.6216.4 to apply only to the entire “sign support structure.” LADBS wrote the following in its staff report:

Building Permit No. 19048-10000-02071 was issued for the demolition of the existing billboard sign. The demolition work approved under this permit was carried out until completion and the permit was subsequently finaled on October 29, 2019. While it is true that the sign’s supporting pipe was cutoff at grade level and the portion of the pipe underground was allowed to remain in place. This is in line with the Department’s longtime policy which, in the interest of safety and to limit any detrimental effects to adjacent structures and properties, allows for deepened foundations to remain. The removal of a large steel pipe encased in concrete that probably extends several feet (appellant states 8’ diameter and 30’ to 40’ deep) would like (sic) be very disruptive and likely to cause damage to existing structures in the vicinity and require extensive shoring.

The applicant submitted permit application No. 20048-30000-00178, on January 23, 2020 for a new off-site sign and not a repair as stated by the appellant. The sign no longer exists due to demolition under Building Permit No. 19048-10000-02071. Therefore, Section 91.6216.4 which provides for the repair of signs is not applicable.

Respondent asserts a similar interpretation in its opposition brief, stating: “As described above, the existing billboard has been demolished by the billboard’s owner, Outfront, and no longer exists.” (Oppo. 5.) The court does not agree that the determinative issue is whether a demolition permit has been “finaled.” However, Respondent’s interpretation of section 91.6216.4 to apply only to an “existing” support structure, i.e. one that could feasibly be used to support a billboard, is consistent with the plain language of the statute.

Petitioners contend that this “situation is no different from one in which a legal nonconforming structure is damaged by vandals, the passage of time or a natural disaster.” (OB 12-13.) In reply, Petitioners argue that “[i]f the upper portion of the Subject Billboard had toppled in an earthquake, rather than been removed pursuant to a demolition permit, the Building Department would certainly have violated section 91.6216.4 if it denied an application to repair the structure at a cost of less than 50 percent.” (Reply 4.) These analogies do not apply here. In this case, the above-grade pole that could support a billboard has been demolished and no longer exists. Section 91.6216.4 is more reasonably interpreted to mean that the above-grade support structure must still exist for alterations, repairs, or rehabilitation to be permitted.

Based on the foregoing, the court is not persuaded by Petitioners’ arguments that 91.6216.4 applies to the below-grade components of an off-site sign that has otherwise been demolished.

To the extent there is ambiguity in section 91.6216.4, the court also analyzes the parties’ remaining contentions as follows.

Petitioners cite to Ordinance No. 181340 and also the Hollywood Signage Supplemental Use District, created by Ordinance No. 176172, to support their position that city law “mandates the continued right of both the sign and sign support structure.” (OB 3.) Ordinance No. 181340 states, in pertinent part:

Existing Signs. Every existing sign and/or sign support structure constructed under a valid permit and used in conformance with the Code regulations and LADBS approvals in effect at the time of construction shall be allowed to continue to exist under those regulations and approvals even though subsequent adopted regulations and approvals have changed the requirements.

Petitioners do not cite any language from Ordinance No. 181340 and the Hollywood Signage Supplemental Use District that suggests that an “existing sign support structure” includes only the below-grade pole and concrete, after demolition of the above-grade components.

As Respondent point out, new off-site billboards are prohibited in Los Angeles pursuant to LAMC section 14.4.4.B.11, which states:

There is an exception to this prohibition for “alterations that conform to the provisions of Section 91.6216 and all other requirements of this Code.” (LAMC § 14.4.4.B.11(a).) Thus, the general prohibition against off-site signs does not, in itself, support the court’s interpretation of the alteration provisions in Section 91.6216. However, definitions from Article 4 are relevant, as analyzed above.

Respondent contends that its interpretation of section 91.6216.4 is entitled to deference. (Oppo. 5-6.) “When an agency is not exercising a discretionary rulemaking power but merely construing a controlling statute, ‘[t]he appropriate mode of review ... is one in which the judiciary, although taking ultimate responsibility for the construction of the statute, accords great weight and respect to the administrative construction.’ How much weight to accord an agency's construction is ‘situational,’ and greater weight may be appropriate when an agency has a ‘comparative interpretive advantage over the courts,’ as when ‘the legal text to be interpreted is technical, obscure, complex, open-ended, or entwined with issues of fact, policy, and discretion.’” (American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 461-462.) Additionally, “consistent administrative construction of a statute, especially when it originates with an agency that is charged with putting the statutory machinery into effect, is accorded great weight.’” (Ste. Marie v. Riverside County Regional Park & Open-Space Dist. (2009) 46 Cal.4th 282, 292-293.) “Significant factors to consider include whether the administrative interpretation has been formally adopted by the agency or is instead in the form of an advice letter from a single staff member, and whether the interpretation is long-standing and has been consistently maintained.” (Ibid.)

Here, LADBS presented evidence that it has a long-standing policy of demolishing only the above-grade part of a billboard sign and pole. Specifically, inspector Buitrago testified as follows:

Petitioners do not show that this administrative practice has ever been challenged. In his declaration, Stephens also implies that leaving the below-grade components in place is a common practice when demolishing an off-site billboard. (AR 126-127.) This administrative practice of demolishing only the above-ground portion of a billboard squarely conflicts with Petitioners’ interpretation of section 91.6216.4 to authorize the alteration, repair, or rehabilitation of the below-ground components. If the below-ground components can be “rehabilitated” pursuant to section 91.6216.4, then any off-site billboard removed pursuant to LADBS’s administrative practice would never truly be demolished in Los Angeles. That construction is inconsistent with LAMC section 14.4.4.B.1, discussed above, which generally prohibits new off-site signs. While Respondent does not show any formally adopted or consistent interpretation of section 91.6216.4 itself, its demolition practice is generally consistent with the court’s interpretation of section 91.6216.4.

Both sides rely on the federal district court’s decision in Show Media California, LLC v. City of Los Angeles (C.D. Cal. 2009) 2009 WL 8652843. The court has considered Show Media, including its discussion of off-site sign regulations in Los Angeles. The district court in Show Media did not consider whether a demolished billboard, in which only below-ground components remain on the property, could be considered an “existing sign support structure” under section 91.6216.4. “‘It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.’” (People v. Knoller (2007) 41 Cal.4th 139, 154-55.) Further, on appeal, the Ninth Circuit stated that “Show Media does not have standing to challenge L.A. Municipal Code § 91.6216.4.3 (the rebuild provision) as unconstitutional.” (Show Media California, LLC v. City of Los Angeles (2012) 479 Fed.Appx. 48, 49.) For these reasons, the court does not find Show Media to be persuasive authority for the statutory interpretation of section 91.6216.4.

Based on the foregoing, Petitioners do not show that section 91.6216.4 authorizes the alteration, repair, or rehabilitation of a demolished off-site sign in which no above-grade portion of the sign still exists. Accordingly, Petitioners do not show any prejudicial abuse of discretion in LADBS’s decision to deny the permit application under section 91.6216.4 or in BBSC’s decision affirming the denial of that application. The The court discusses Petitioner’s arguments regarding issuance of the demolition permit.[2]

Respondent contends that Petitioners’ “challenge to the City’s issuance of the demolition permit is … moot as well as meritless.” (Oppo. 9.) Respondent contends that “[i]nvalidation of the City’s demolition permit would have no practical effect at this point, and the courts will not command useless acts with no practical benefits.” (Oppo. 9, citing County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 595-596.) In reply, Petitioners do not respond to the mootness argument and thereby concede the point. (Reply 7-8; Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].)

“California courts will decide only justiciable controversies. [Citations.] The concept of justiciability is a tenet of common law jurisprudence and embodies ‘[t]he principle that courts will not entertain an action which is not founded on an actual controversy....’” (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573.) “A case is considered moot when ‘the question addressed was at one time a live issue in the case,’ but has been deprived of life ‘because of events occurring after the judicial process was initiated.’” (Id. at 1574.) “The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief.” (Ibid.) “As a general proposition courts will not issue a writ of mandate to enforce an abstract right of no practical benefit to petitioner, or where to issue the writ would be useless, unenforceable, or unavailing.” (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 595-596.)

City issued the demolition permit on August 22, 2019, and the demolition work was performed and inspected by City on or about October 29, 2019. (AR 113, 130-132, 200.) Even if the court were to issue a writ directing City to set aside the demolition permit, that writ would not restore the Billboard to its pre-demolition structure and would not have any practical effect. Petitioners do not show any reason to believe that City or Outfront is going to take further action based on the demolition permit.

Petitioners argue that the “LAMC makes it a crime to obtain a building permit without consent of the property owner.” (OB 2, fn. 1, citing LAMC § 91.103.2 [“Every person who knowingly and willfully procures a building and/or grading permit without the consent of the owner of record of the property for which the permit is issued, or such person’s agent, is guilty of a misdemeanor.”]) While not clear, Petitioners may seek an independent determination from this court about whether Outfront made a false statement on the application and whether LADBS issued the permit even after being informed by Karraa that he had no authorized the issuance of the permit. (OB 12-13; Reply 7-8.)

As to any improper or illegal conduct of Outfront, (which the court does not decide), the court cannot issue any practical relief against Outfront in the petition for writ of mandate. Outfront is not a party to the writ cause of action. As to City, Petitioner seems to imply that if City had knowledge that the owner did not consent to issuance of the demolition permit (a disputed factual issue), and improperly issued the permit, that fact should affect Petitioner’s ability to obtain a new or rehabilitation permit for the demolished sign. Petitioner has not developed a legal theory how City’s alleged abuse of discretion would mean it is now entitled to a billboard permit.

Moreover, the court notes that Petitioners could have pursued a preliminary injunction against the demolition permit. Petitioners acknowledge that they learned Outdoor was applying for a demolition permit on or about August 19, 2019. (AR 129-130.) They also contend that the license agreement “obligated the licensee to remove” the billboard. (AR 126.) The demolition did not occur until around October 29, 2019. (AR 113.) In these circumstances, Petitioners had sufficient information and time to pursue a temporary restraining order and injunction against LADBS’s issuance of the permit and Outfront’s performance of demolition work. Petitioners give no explanation of why they did not seek injunctive relief. Further, Petitioners do not respond to City’s contention (Oppo. p.8) the lease allowed Outfront to remove the sign at lease termination.

Finally, Petitioners do not meet their burden of proof under CCP section 1085 for issuance of a writ of ordinary mandate directing City to “[c]ease issuing any permits relating to Billboards without proof of consent by the owner of record of the real property to which the permit relates.” (Pet. p. 25.) Petitioners have not requested that relief in their opening brief or reply. Thus, Petitioners may have withdrawn the request. If not withdrawn, the claim is moot with respect to the demolition permit discussed in the administrative record. Petitioners cite no evidence that City has issued other permits without owner consent or that City has a policy or practice of issuing permits relating to billboards without proof of owner consent.

The petition for writ of mandate is DENIED. The court will transfer the action to Department 1 for assignment of the non-writ causes of action to an independent calendar department.

[1] An off-site sign is defined as “a sign that displays any message directing attention to a business, product, service, profession, commodity, activity, event, person, institution or any other commercial message, which is generally conducted, sold, manufactured, produced, offered or occurs elsewhere than on the premises where the sign is located.” (LAMC § 14.4.2.)

[2] In a footnote, Respondent also argues the following: “Even if the billboard had not been removed and was still standing and considered an ‘existing’ sign and support structure, Plaintiffs would not have any right to repair it. Under the City’s rebuild statute, only the sign’s owner (here, Outfront) has the right to repair or rebuild it.” (Oppo. 5.) The court need not decide the point because it denies the petition on other grounds.