Judge: Michelle Williams Court, Case: 21STCV40912, Date: 2022-08-02 Tentative Ruling

Case Number: 21STCV40912    Hearing Date: August 2, 2022    Dept: 74

21STCV40912           ARARAT GHAZARIAN, et al. vs VAROUJ GIRAGOSSIAN, et al.

City of Los Angeles’ Unopposed Motion for Judgment on the Pleadings

TENTATIVE RULING:  City of Los Angeles’s Motion for Judgment on the Pleadings is GRANTED without leave to amend.

Background

On November 5, 2021, Plaintiffs Ararat Ghazarian and Melina Mardirosian filed this action against Defendants Varouj Giragossian, Carman Giragossian, City of Los Angeles and Its Department of Building & Safety. The Complaint asserts causes of action for: (1) trespass; (2) nuisance; (3) negligence; and (4) declaratory relief. Plaintiffs allege Defendants Varouj Giragossian and Carman Giragossian constructed a block wall that encroached on Plaintiffs’ property without Plaintiffs’ consent and without building permits. Only the fourth cause of action for declaratory relief is asserted against Defendant City of Los Angeles. On November 23, 2021, Plaintiffs filed the missing exhibits to the complaint.

On December 13, 2021, Plaintiffs became unrepresented litigants pursuant to the substitutions of attorney.

Motion

On July 6, 2022, Defendant City of Los Angeles filed the instant motion for judgment on the pleadings arguing Plaintiffs failed to exhaust administrative remedies, must pursue a writ of mandate, and the declaratory relief claim is not ripe as to the City.

The motion is unopposed. (Code Civ. Proc. § 1005(c).)

Meet and Confer

The motion is accompanied by the declaration of K. Lucy Atwood, which satisfies the requirements of Code of Civil Procedure section 439.

Request for Judicial Notice

Defendant requests the Court take judicial notice of portions of the City of Los Angeles Municipal Code and the Los Angeles Department of Building and Safety’s form entitled “Request for Modification of Building Ordinances.” The request for judicial notice is GRANTED as to both exhibits. (Evid. Code §§ 452(b); 452(c).)

Motion for Judgment on the Pleadings

Standard

Pursuant to Code of Civil Procedure section 438(b), “[a] party may move for judgment on the pleadings . . . [and] The motion provided for in this section may only be made on one of the following grounds: . . . If the moving party is a defendant, that either of the following conditions exist: (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint. (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.”

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.)  “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) A motion for judgment on the pleadings does not lie as to a portion of a cause of action. (Ibid.) “In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action.” (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)

Declaratory Relief – Fourth Cause of Action

The fourth cause of action for declaratory relief is the only cause of action asserted against Defendant City of Los Angeles. Plaintiff alleges the LADBS Building Mechanical Inspector of the Code Enforcement Bureau told Plaintiff Ghazarian that the code violation was on Plaintiffs’ property and therefore the violation would be addressed to Plaintiffs and “any property line dispute that will be a civil case for the court system.” (Compl. ¶ 10.) The specific prayer for relief related to the fourth cause of action as to Defendant City of Los Angeles seeks “a declaration that the LADBS is precluded from enforcing it’s the [sic] LADBS Order against Plaintiffs but instead seek to enforce it against the Giragossians because they constructed the Encroachment.” (Compl. at 9 ¶ 6.)

Plaintiffs’ Claim is Improperly Asserted in this Unlimited Civil Action

Defendant first contends Plaintiffs failed to exhaust their administrative remedies. (Mot. at 6:21-8:5.) “The rule of exhaustion of administrative remedies is well established in California jurisprudence. In brief, the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.” (Los Globos Corp. v. City of Los Angeles (2017) 17 Cal.App.5th 627, 632 (quotations and citations omitted).)

The Notice of Code Violation indicates Plaintiffs violated sections 91.106.1.2, 91.103.1, 12.21A.1.(a), 91.5R404.2, and 91.5R103.1 of the L.A.M.C and ordered Plaintiffs to obtain permits and approvals, submit plans and specifications, and remove the unapproved retaining or foundation wall. (Compl. Ex. B.) Pursuant to LAMC section 98.0403.1(b) (2), “[t]he Board shall have the power to hear and determine appeals from orders, interpretations, requirements, determinations, or actions of the Department pertaining to enforcement of specific ordinances, regulations, or laws in site-specific cases.” Section 98.0403.2 provides the requisite procedures for appealing to the Board. Plaintiffs’ complaint does not allege exhaustion of these administrative appeals and therefore the motion for judgment on the pleadings is GRANTED.

Defendant also correctly contends that, had Plaintiffs exhausted their administrative remedies, any review of the LADBS decisions must be made via a writ of mandate, not a declaratory relief action. (Mot. at 8:6-9:7. See State of California v. Superior Court (1974) 12 Cal.3d 237, 249 (“It is settled that an action for declaratory relief is not appropriate to review an administrative decision.”).)

Plaintiffs have not opposed the motion. Accordingly, they have not met their burden to demonstrate a basis for leave to amend. (See generally York v. City of Los Angeles (2019) 33 Cal.App.5th 1178, 1197.­)