Judge: Michael E. Whitaker, Case: 25SMCP00289, Date: 2025-06-11 Tentative Ruling

Case Number: 25SMCP00289    Hearing Date: June 11, 2025    Dept: 207

RULING

BACKGROUND

This case arises from a dispute concerning construction entitlements for real property.  The facts as alleged in the verified petition for writ of mandate are as follows:

Original Entitlements

Petitioner Los Trancos Management Services, LLC (“Petitioner” or “Los Trancos”) is the owner of beachfront real property located at 31444 Broad Beach Road in Malibu (“Petitioner’s Property”). 

Real Party in Interest 2XMD Partners LLC (“2XMD”) is the owner of the adjacent beachfront real property to the east of Petitioner’s Property, located at 31438 Broad Beach Road (“2XMD’s Property”) and the real property immediately adjacent to the east of that, located at 31430 Broad Beach Road (“2XMD’s Second Property”). 

On May 5, 2014, the prior owner of 2XMD’s Property applied to Respondent City of Malibu (“Respondent” or “City”) for a Coastal Development Permit (“CDP”) No. 14-028 to construct a 7,237 square foot single family residence on the lot of 2XMD’s Property.  CDP No. 14-028 included Variance No. 14-012 for the construction on a slope steeper than 2 ½ to 1 and Variance No. 15-013 for the construction of a retaining wall to protect neighboring properties from geological slope instability and to serve as a shoreline protection device where there is no onsite wastewater treatment system.  CDP No. 14-028, Variance No. 14-012, and Variance No. 15-013 are collectively referred to as the “Entitlements.”

On September 19, 2016, the City Planning Commission approved the Entitlements through Resolution No. 16-73.  On September 29, 2016, the beneficial owner of 2XMD, who at the time owned the immediately adjacent property, herein referred to as 2XMD’s Second Property, filed Appeal No. 16-007, appealing the approval of Resolution 16-73.

Before the appeal was resolved, ownership of the property transferred to 2XMD, as evidenced by a change in ownership 2XMD submitted on July 13, 2018.  2XMD withdrew its appeal of the Entitlements on September 6, 2018.

On March 1, 2019 the California Coastal Commission received the City’s Notice of Final Action related to the Entitlements.  The appeal period ended March 15, 2019, and the Entitlements became effective.

The First Three Extensions

A party must timely commence “development” pursuant to the CDP in order to vest rights to the CDP.  Otherwise, the party must seek approval for an extension of the CDP.  In Malibu, an extension of a CDP requires approval by the City Planning Commission at a noticed public hearing.  Malibu does not define “commencement” but defines “development” as the “placement or erection of a solid material or structure.”  (LIP § 2.1.)

California law dictates that a developer’s rights to develop property do not vest until a valid permit (or functional equivalent) has issued and the developer has performed substantial work and incurred substantial liabilities in good faith reliance on the permit.  (Avco Community Developers, Inc. v. South Coast Reg. Com. (1976) 17 Cal.3d 785, 791.)

On February 10, 2022, 2XMD applied for a one-year extension of the Entitlements, which was granted on May 2, 2022.  On March 9, 2023, 2XMD applied for a second one-year extension of the Entitlements, which was approved on May 15, 2023.  On March 12, 2024, 2XMD applied for a third one-year extension of the Entitlements, which was approved on July 15, 2024.

Meanwhile, in June and July of 2024, 2XMD operated heavy machinery within the tidal and intertidal zones, removed large amounts of sand from Broad Beach without a permit to do so, and caused an unpermitted rock revetment on 2XMD’s Property to move further west down the site’s slope and into the public access easement along Broad Beach. 

As a result, on July 3, 2024, the City issued a Stop Work Order to 2XMD and on April 30, 2025, the California Coastal Commission issued a Notice of Intent to Commence Cease and Desist Order, Restoration Order, and Administrative Penalty Proceedings, and Notice of Intent to Record a Notice of Violation.

The Fourth Extension and Additional Permits

On March 2, 2025, 2XMD applied for a fourth extension of the Entitlements.  On March 11, 2025, the City Planning Department, Coastal Engineering Department, and Geotechnical Division approved plans for a new seawall at 2XMD’s Property under CDP 14-028.  On March 13, 2025, the City issued the following permits:

·       Grading Permit 25-0381, authorizing grading, drainage, and erosion control for a new single-family residence

·       Building Permit 25-0382, authorizing basement foundation piles and gradebeams for a new single-family residence

·       Building Permit 25-0383, authorizing basement foundation retaining walls for a new single-family residence

·       Building Permit 25-0384, authorizing a new single-family residence seawall

·       Building Permit 25-0385, authorizing removal of the existing rock revetment.

The City’s Local Implementation Plan (“LIP”) forbids grading work on slopes greater than 4 to 1 during the rainy season (November 1 through March 31).  CDP No. 14-028 expressly conditioned approval on compliance with this limitation.

Because it was not possible for 2XMD to grade the slopes before the March 15, 2025 expiration of the Entitlements, Petitioner contends the March 13 permits were issued in error.

On March 27, 2025, the City sent a Notice of Public Hearing regarding the Fourth Extension of the Entitlements, scheduled for April 21, 2025.  On or about April 7-10, 2025, Petitioner learned the Public Hearing regarding the Fourth Extension was cancelled as moot, as 2XMD’s rights to the existing entitlements had vested due to the commencement of construction. 

Apparently, on March 14, 2025, the day before the third extension of the Entitlements expired, crew workers arrived at 2XMD’s Property and worked from 7:00 a.m. to 1:00 p.m. cleaning up and securing the site.  Petitioner’s position is that this work was insufficient to constitute “commencement” of “development” to vest the Entitlements.

On April 18, 2025, Petitioner appealed the Interim Planning Director’s decision to remove the Hearing regarding the Fourth Extension of the Entitlements.  Petitioner also provided public comment on April 21, 2025, the date the hearing was originally scheduled.  On April 22, 2025, the City rejected Petitioner’s Appeal.

On May 23, 2025, Petitioner filed a petition for writ of mandate against the City in this Court.  Petitioner now applies ex parte for a temporary restraining order (“TRO”) and an order to show cause (“OSC”) why a preliminary injunction should not issue, enjoining 2XMD from engaging in further construction activities 2XMD’s Property (31438 Broad Beach Road). 

2XMD opposes the issuance of a TRO and OSC.

LEGAL STANDARDS – TRO AND PRELIMINARY INJUNCTION

A party seeking a TRO must establish “(1) irreparable injury to the moving party without the TRO; (2) no harm to the public interest; (3) no substantial harm to other interested parties;  and (4) a likelihood of prevailing on the merits.”  (Sarale v. Pacific Gas & Electric Co. (2010) 189 Cal.App.4th 225, 243.)

Pursuant to Code of Civil Procedure section 527, subdivision (a), “[a] preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor.” (Code Civ. Proc., § 527, subd. (a).) “The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial.” (Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1316.) The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396. 1402.) Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. (See, e.g., ReadyLink Healthcare v. Cotton (2005) 126 Cal.App.4th 1006, 1016; Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150.)

The trial court considers two factors in determining whether to issue a preliminary injunction: (1) the likelihood the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the court grants a preliminary injunction. (Code Civ. Proc., § 526, subd. (a).) The balancing of harm between the parties “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.” (Husain v. McDonald’s Corp. (2012) 205 Cal.App.4th 860, 866-67.)

“The decision to grant a preliminary injunction rests in the sound discretion of the trial court ... before the trial court can exercise its discretion the applicant must make a prima facie showing of entitlement to injunctive relief. The applicant must demonstrate a real threat of immediate and irreparable injury.” (Triple A Machine Shop, Inc. v. State of Cal. (1989) 213 Cal.App.3d 131, 138.) “[A]n injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff,” and the party seeking injunctive relief bears the burden to prove its absence. (Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1564-1565.)

ANALYSIS

A.    IMMEDIATE AND IRREPARABLE HARM

Petitioner argues that continued construction in the interim is causing immediate and irreparable harm, both to Petitioner’s property and to the public beach, whereas requiring 2XMD to pause construction will preserve the status quo.

Petitioner contends that 2XMD re-commenced construction on May 29, 2025, both on 2XMD’s Property and on Broad Beach.  (Kohlberg Decl. ¶ 14.)  Construction continued on May 30, 2025, including blocking off street access on Broad Beach which prevented Petitioner’s egress from its property.  (Id. at ¶ 15.)

Petitioner has also advanced the expert declaration of Paul Krause, which indicates two significant changes to the environment warrant an additional assessment before the Entitlements should be extended: the Palisades fire in January and 2XMD’s operation of heavy machinery on Broad Beach in the intertidal zone in July of last year.  (Krause Decl ¶¶ 7-8.)  First, Krause declares that the Palisades fire in January “degraded and stressed beach, nearshore, and marine communities across the Malibu coast including the areas of Broad Beach” noting Broad Beach has “ash visibly darkening the color of the sand.”  (Krause Decl. ¶ 7.)  Krause also declared that 2XMD’s operation of heavy machinery on Broad Beach in July of last year “impacted the coastal ecological communications at Broad Beach, such as affecting grunion spawning and populations of bean clams, sand crabs, and beach hoppers” and the “vibrations and noise of operating heavy machinery on Broad Beach can also lead to behavioral changes in shorebirds, fish, invertebrates, and potentially marine mammals.”  (Krause Decl. ¶ 8 [emphasis added].)

            In opposition, 2XMD points out that the construction work done on and around May 29, 2025 involved emergency repair and reinforcement of the seawall on 2XMD’s Second Property, not at issue here, and 2XMD’s Property at issue in this lawsuit was used merely for construction staging for the emergency seawall repair on its second property.

            The Court does not find that Petitioner has met its burden to demonstrate that Respondent’s construction work done pursuant to the Entitlements is currently causing, or likely to cause any immediate or irreparable harm, either to Petitioner’s property or to the public beach.  Importantly, Petitioner takes issue with construction work 2XMD did on the public beach last summer, but the Entitlements do not pertain to any work done on or to the public beach.  As such, to the extent 2XMD continues to drive heavy machinery on the beach or otherwise removes sand or conducts construction on the public beach, such conduct would be outside the scope of the Entitlements at issue here anyway.

            Further, the Court is unconvinced that the stress the recent Palisades fire caused to the local marine life warrants nullifying Entitlements to construct a single family residence that, as discussed more fully below, the City already determined had vested, rejecting the arguments Petitioner now raises both at the original hearing and on appeal from that decision.

B.    PROBABILITY OF SUCCESS ON THE MERITS

A TRO or preliminary injunction may not issue unless it is “reasonably probable that the moving party will prevail on the merits. (San Francisco Newspaper Printing Co., Inc. v. Superior Court (1985) 170 Cal.App.3d 438, 442; see Costa Mesa City Employees’ Association v. City of Costa Mesa (2012) 209 Cal.App.4th 298, 309 [no injunction may issue unless there is at least “some possibility” of success].)

Petitioner argues that it is likely to succeed on the merits of its case because substantial development did not commence prior to March 15, 2025.

In opposition, 2XMD first points out that this is the third lawsuit Petitioner has filed regarding 2XMD’s construction on its properties on Broad Beach.  On August 8, 2024, Petitioner filed Los Trancos Management Services, LLC v. 2XMD Partners, LLC, case number 24SMCV03828 (“Case 1”) alleging that 2XMD’s emergency repair and enforcement of a seawall on 2XMD’s Second Property violated the California Coastal Act.  The Hon. Judge Edward B. Moreton, Jr. stayed that case because the California Coastal Commission had already commenced administrative proceedings to address the acts alleged in the complaint. 

On December 6, 2024, Petitioner filed the case Los Trancos Management Services, LLC v. City of Malibu, case number 24SMCP00667 (“Case 2”), pending in Department 207, alleging that the City improperly rejected Petitioner’s appeal of the City Planning Commission’s approval of an extension of permits to develop 2XMD’s Property at issue in this case, but did not serve 2XMD with Case 2 until May 19, 2025.  2XMD is in the process of meeting and conferring regarding a demurrer for failure to serve the City within the time limits required by Government Code section 65009, laches, and failure to allege it had standing to appeal the underlying extension.

Then, on June 2, 2025, 2XMD was served with the instant case, alleging City improperly issued permits and improperly cancelled the hearing on 2XMD’s fourth extension request (and dismissed Petitioner’s subsequent appeal thereof).

Further, 2XMD explains that the permits, which conditionally prohibit 2XMD from conducting grading work during the rainy season, were not issued in error, and 2XMD has not violated those conditions, as no grading work has yet commenced.  Moreover, 2XMD argues that the work 2XMD completed on March 13 and 14, 2024 to vest the Entitlements was the drilling of a basement foundation pile, pursuant to Building Permit No. 25-0382.

Thus, Petitioner has not met its burden to demonstrate that the City erred, either in issuing the permits, nor in determining that 2XMD’s basement foundation pile work was sufficient to vest the Entitlements, nor its subsequent rejection of Petitioner’s appeal.

Indeed, the Verified Petition alleges that at the April 21 hearing, Planning Commissioner John Mazza suggested re-opening the hearing to hear the item, in light of challenged litigation and future hearings Petitioner’s appeal posed in order to “save some staff time.”  (Petition at ¶ 58.)  The Assistant City Attorney responded that there was no legal mechanism to reschedule the Fourth Extension Hearing, and the validity of 2XMD’s vesting “was reviewed by the City Attorney, the Planning Director, and staff, and we believe that the correct decision was made here.”  (Ibid.)  Further, in denying Petitioner’s appeal, the City explained that the Interim Planning Director acted within her discretion in determining that a Fourth Extension was not required.  (Id. at ¶ 59 and Ex. K.)

Thus, the “errors” Petitioner asserts have already been raised and thoroughly reviewed multiple times by the City, and Petitioner has not met its burden to demonstrate that the City clearly abused its discretion or otherwise erred.

CONCLUSION AND ORDER

Therefore, finding Petitioner has not met its burden to demonstrate immediate and irreparable harm, either to Petitioner or to the public beach, nor has Petitioner met its burden to demonstrate a likelihood of success on the merits, the Court denies Petitioner’s ex parte application for a temporary restraining order and declines to set an order to show cause why a preliminary injunction should not issue. 

Petitioner shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED:  June 11, 2025                                                         ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court