Judge: Mary H. Strobel, Case: 21STCP03146, Date: 2023-04-11 Tentative Ruling

Case Number: 21STCP03146    Hearing Date: April 11, 2023    Dept: 82

             Petitioner Fix the City, Inc. (“Petitioner”) petitions for a writ of mandate directing Respondents City of Los Angeles (“City”), Los Angeles Department of Building and Safety (“LADBS”), and Board of Building and Safety Commissions (“BBSC”) (collectively “Respondents”) to set aside the “permits and entitlements” for two separate multi-family residential structures on properties located at 1772 Glendon Avenue and 1751 Malcolm Avenue on the westside of Los Angeles (“Project”).  (See Opening Brief (“OB”) 4-5 and Pet. Prayer ¶¶ 1-3.)  Respondents oppose the petition and Real Party in Interest HS Westside Properties, LLC (“Real Party”) joins in the opposition. 

            Petitioner contends that City’s issuance of permits for the Project violated the Alquist–Priolo Act (hereafter “AP Act” or “Act”), the Act’s regulations, and related provisions of City municipal code.  On February 28, 2023, the court held a hearing on the petition and entered an order granting the first and second causes of action.  The court concluded that LADBS abused its discretion in not requiring a further geologic investigation for the Project upon review of Fault Evaluation Report 259 (“FER-259”) and the related AP Earthquake Zone Map (“2018 AP Zone Map”) issued by the California Geological Survey in 2018.  The court concluded that LADBS did not abuse its discretion in approving mitigation measures recommended by Applied Earth Sciences (“AES”), a licensed geotechnical engineering firm that performed the geological fault study for the Project.  Petitioner also did not prove that the Project was constructed in a manner inconsistent with the approved mitigation.  The court’s ruling dated February 28, 2023 (hereafter “Ruling”), provides a detailed discussion of the court’s reasoning.  That full discussion is not repeated here but is incorporated by reference. 

            The court did not decide the appropriate remedy at the February 28, 2023, hearing and ordered supplemental briefing solely on that issue.  The court has received the supplemental briefs filed by Petitioner, Respondents, and Real Party and now issues its ruling on remedy. 

Judicial Notice

Petitioner’s Request for Judicial Notice, filed 4/4/23 (“RJN”) Exhibits 1 and 2 – Granted

Additional Factual Background

            Real Party represents that the Project was completed in July 2021 and is fully occupied.  (Real Party Suppl. Br. 1-2.)  Petitioner has not presented evidence to the contrary. 

            In response to this court’s Ruling, Real Party retained AES to propose a further geologic investigation of the potential fault trace in the vicinity of the Glendon Avenue portion of the Project shown in the 2018 AP Zone Map (hereafter “Phase II Study”).  (Schneidereit Decl. filed 4/4/23 (“Schneidereit Decl.”) ¶ 4.)  On March 31, 2023, AES submitted a written, Initial Scope of Work for the Phase II Study outlining the planned field exploration along the Glendon Avenue side of the Project using Cone Penetrometer Testing soundings (“CPT”) and continuous core borings.  (Id. ¶ 4.)  As relevant to the issue of remedy, this Initial Scope of Work states:

We understand that the California Geologic Survey prepared its 2017-18 Seismic Hazards Map showing the Santa Monica fault through this part of Century City/Westwood, based partly on the results of The Phase I studies. The Phase I studies were referenced abundantly in the CGS’s 2018 Fault Evaluation Report No. 259 for the Santa Monica fault zone. However, the state also showed a postulated splay fault, not based on exploratory data, depicted by a dashed black line in the vicinity of Glendon Avenue.

At this time, we are proposing additional exploration along Glendon Avenue to investigate whether the dashed-line postulated fault shown on the recent AP map in the vicinity of Glendon Avenue actually exists, and if it exists, its trend and orientation. Based on our correspondence with officials from the city grading department, we anticipate approximately two to three core borings to 80’ each, accompanied by roughly 12-13 CPT soundings also to 80’ depth, which corresponds to the terminal depths of most exploratory borings/CPTs advanced as part of the initial study along Malcolm….[¶]

(Sinanian Decl. filed 4/4/23 (“Sinanian Decl.”) ¶ 5, Exh. A.)

AES estimates that the “overall approximate timeline from approval of Phase II work plan by client and city, to preparation of preliminary report, is on the order of 4 months.”  (Id. Exh. A.)  City geologist Schneidereit estimates that, in addition to the four months estimated by AES, at least another two months will be needed for City to review the preliminary report, prepare LADBS’s correction and/or approval letter, and other follow-up communications that may be needed.  (Schneidereit Decl. ¶ 6.)

Analysis

            As discussed in the Ruling, the AP Act and City municipal code require LADBS to determine “through accepted geologic seismic studies” whether the structures constructed at 1772 Glendon and 1751 Malcolm are located in a safe manner and not over or astraddle the trace of an active fault.  (Ruling 14-15.)  Further, as the court has determined, the 2018 AP Zone Map shows a “potential fault trace in the vicinity of the project” that needs to be further investigated.  (Ruling 19.)  In these circumstances, all parties agree that the remedy should include an order directing LADBS to conduct further geological investigation into this potential fault trace.  Further, the parties agree that the Phase II Study, as outlined in AES’s March 31, 2023, Initial Scope of Work, and LADBS’s review of the study is appropriate further investigation under the AP Act and City’s municipal code.  (See Pet. Suppl. Br. 4-5; Real Party Suppl. Br. 4; Resp. Suppl. Br. 3.) 

Pending the completion of this investigation, Petitioner proposes two alternative remedies regarding the occupants of the two buildings: “That Respondent LADBS either (a) rescind the certificate of occupancy until such time as the determination in paragraph (1) has been completed …; or (b) provide notice to each occupant of the units at 1772 Glendon and 1751 Malcolm of the Court’s ruling in this matter and that forthcoming geologic seismic studies will be undertaken.”  (Pet. Supp. Br. 5.)  Respondents and Real Party oppose the request for rescission of the certificate of occupancy.  They have not stated a position with regard to giving notice to the occupants. 

A writ of mandate is a form of equitable remedy and is similar to injunctive relief. (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1563, fn. 9 [“an injunction would be identical in purpose and function as a writ of mandate.”].) “It is a familiar doctrine of equity that the scope of [an] injunction will be limited to the wrongful act sought to be prevented.” (Magill Bros. v. Building Service etc. Union (1942) 20 Cal.2d 506, 512, 127 P.2d 542.) “In fashioning a remedy, a court should ‘strive for the least disruptive remedy adequate to its legitimate task’ and tailor it to the harm at issue.” (People v. Uber Technologies, Inc. (2020) 56 Cal.App.5th 266, 313.)

In fashioning a remedy for this case, the court considers that the 2018 AP Zone Map shows a “potential fault trace in the vicinity of the project” that needs to be further investigated.  (Ruling 19 [bold italics added].)  However, neither FER-259 nor the 2018 AP Zone Map conclusively establishes that the fault trace postulated on the 2018 AP Zone Map actually exists or impacts the Project site.  The “harm” identified in the court’s Ruling, therefore, can be effectively remedied by a further geological investigation and notice to the buildings’ occupants that additional geologic seismic studies will be undertaken.  Petitioner’s alternative proposal to rescind the certificate of occupancy would be extremely disruptive and, based on the currently available geological evidence, both overbroad and unnecessary to obtain compliance with the AP Act or City’s municipal code.

Petitioner contends that “[t]he AP Act is precautionary, requiring study prior to the approval of projects for human habitation.”  (Pet. Suppl. Br. 2.)  Petitioner also contends that the court “may” void the certificate of occupancy pursuant to Los Angeles Municipal Code sections 11.02 and 91.106.4.1(4) and also Horwitz v. City of Los Angeles (2004) 124 Cal.App.4th 1344.  (Pet. Supp. Br. 3-4.) 

Here, consistent with the AP Act and Municipal code section 91.106.4.1(4), and prior to approval of the permits, “AES conducted a field exploration for the entire Project site, considered geological data from nearby sites, and gave an expert opinion regarding the fault trend with respect to the entire Project site, including 1772 Glendon. AES also opined that there was no ‘supporting data that would indicate the presence of a fault in the southern portion of the study area’.”  (Ruling 16.)  “[T]he AES reports were prepared by a licensed geologist and identify the location, recency, and nature of faulting that has or may affect the entire Project site.”  (Id. at 17.)  “LADBS’s decision to approve the AES fault studies in February 2016 was not arbitrary, capricious, or entirely lacking in evidentiary support.”  (Id. at 18.) 

The court’s finding that LADBS abused its discretion was based on section 2623(b) of the AP Act, which states that “after a report has been approved or a waiver granted, subsequent geologic reports shall not be required, provided that new geologic data warranting further investigations is not recorded.”  (Ruling 19.)  As discussed, the AP Zone Map shows a potential fault trace that requires further investigation.  However, field data does not presently substantiate whether or not that fault trace actually exists or, if it does, whether or how its trend and orientation affect the Project site.  Petitioner does not cite any provision of the AP Act or its regulations requiring rescission of the certificate of occupancy as the appropriate remedy in these circumstances. 

Horwitz, supra, cited by Petitioner, does not dictate a different result.  Horwitz did not decide a claim brought under the AP Act or the scope of an equitable remedy in circumstances similar to those presented here.  In an equitable writ proceeding, the court has discretion to fashion the appropriate remedy for the specific facts of this case.  The court finds a notice to occupants to be appropriate given the circumstances discussed above and in the Ruling.  However, City and Real Party have not commented on whether notice should be given.  They may do so at the hearing. 

The court denies Petitioner’s alternative proposal for rescission of the certificate of occupancy.  In light of that conclusion, the court does not reach Respondents’ argument based on Health and Safety Code section 17980 or Real Party’s argument that a rescission remedy is barred by estoppel.

Petitioner contends that “the Court should also demand a prompt return to the writ” and “[t]his matter should be handled as expeditiously as possible.”  (Pet. Suppl. Br. 6.)  The court agrees on both points.  However, the court has no evidence that the 6-month estimate for completion of the Phase II Study and LADBS’s review of the study is unreasonable.  Counsel may address this issue at the hearing.

Conclusion

Subject to oral argument, the court will issue a writ of mandate directing LADBS as follows:

(1)  To conduct further geologic investigation consistent with the AP Act, LAMC section 91.106.4.1(4), and this court’s Rulings of the potential fault trace in the vicinity of the Glendon Avenue side of the Project shown in the 2018 AP Zone Map. 

(2)  Provide notice to each occupant of the units at 1772 Glendon and 1751 Malcolm of the court’s final rulings in this matter and that forthcoming geologic seismic studies will be undertaken.

At the hearing, counsel should address the appropriate timing for a return on the writ.      

Counsel for Petitioner shall prepare, serve and lodge a proposed form of judgment and proposed form of writ by April 21, 2023 after meeting and conferring with respondent and real party regarding any objections to the form of judgment or form of writ.  Counsel for  Petitioner shall also lodge a declaration with the proposed form of judgment and proposed form of writ in accordance with LASC local rules, rule 3.231(n).