Judge Mitchell L. Beckloff, Case 20STCP00082 2022-08-31 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 20STCP00082, Date: 2022-08-31 Tentative Ruling

Petitioner, Friends of Waverly, Inc. seeks an order setting aside a sub-lease entered into between Respondents, the City of Los Angeles and its City Council, and Real Party in Interest, People Assisting the Homeless (PATH). PATH intends to operate a bridge housing shelter for people experiencing homelessness on the property, a parking lot located in Griffith Park. Petitioner contends it is entitled to relief pursuant to sections 373 and 595 of the City of Los Angeles Charter (Charter).[1]

The City’s four objections to the Declaration of Noel Weiss are all sustained.[3]

On September 4, 2019, the City’s Board of Recreation and Parks Commissioners (RAP Board) approved the use of property at Griffith Park for a temporary bridge housing shelter. The RAP Board agreed to “license” to the City, for a maximum of three years, the right to locate or occupy the shelter on park land. (Weiss Decl., ¶ 2.) On May 5, 2020, the City Council then approved a motion authorizing City staff to enter into a sub-lease with PATH, obligating PATH to operate the shelter. (Weiss Decl., Ex. B.) On June 10, 2020, the City’s Department of General Services entered into a sub-lease with PATH as directed by the City Council (PATH Lease). (Mahlowitz Decl., Ex. D)

The Path Lease limited its term to three years, ending July 2, 2023, as previously authorized by the RAP Board. (Mahlowitz Decl., Ex. D, [PATH Lease, § 3.1].) The PATH Lease also then contained the following provision:

“Option to Extend Term. Tenant shall have two (2) consecutive options to extend the Term for successive periods of one (1) year each, commencing on the first day following the expiration of the Term (‘Options’).” (Mahlowitz Decl., Ex. D [PATH Lease, § 3.2].)

On January 8, 2020, Petitioner filed a petition with the court challenging the City’s actions involving the PATH Lease. Petitioner challenged—among other things—the PATH Lease’s option term as exceeding the authority provided to the City by the RAP Board.

On August 25, 2021, the City Council approved a motion authorizing City staff to amend the PATH Lease. (Weiss Decl., Ex. C.) On August 26, 2021, the City’s Department of General Services amended the PATH Lease, and removed the option term (Amended PATH Lease). (Weiss Decl., Ex. C.)

Code of Civil Procedure section 1085, subdivision (a) provides in relevant part:

“A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.”

“To obtain writ relief under Code of Civil Procedure section 1085, the petitioner must show there is no other plain, speedy, and adequate remedy; the respondent has a clear, present, and ministerial duty to act in a particular way; and the petitioner has a clear, present[,] and beneficial right to performance of that duty.” (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 606.) “A ministerial duty is an obligation to perform a specific act in a manner prescribed by law whenever a given state of facts exists, without regard to any personal judgment as to the propriety of the act. [Citation.]” (People v. Picklesimer (2010) 48 Cal.4th 330, 340.)

The petition[4] alleges the City violated its ministerial, non-discretionary mandatory duty when it failed to pass an ordinance authorizing any lease of park property in excess of three years. Petitioner alleges the City violated Charter sections 373 and 595, subdivision (a) when it entered into the Amended PATH Lease.

“Except as otherwise provided in the Charter, no board, officer or employee shall make any type of contract, as specified by ordinance, obligating the City or any department to make or receive payments of money or other valuable consideration for a period longer than such period as provided by ordinance, unless such contract shall have first been approved by the Council. . . .”

City Charter section 595, subdivision (a) provides in part: The RAP Board “may lease for recreational purposes any municipal auditoriums, arenas, sport centers or related facilities subject to the following conditions: (a) . . . . Leases in excess of five years shall be approved by the Council by ordinance.”

Petitioner correctly reports Charter section 595 requires the City Council to approve any lease of park property in excess of five years by ordinance. Petitioner argues the Amended PATH Lease improperly allows the City and PATH to continue the lease on a month-to-month basis into perpetuity. Petitioner contends the circumstances suggest PATH could obtain a leasehold interest exceeding five years without RAP Board approval or the City Council’s adoption of an ordinance.

The City asserts Petitioner has misrepresented the Amended PATH Lease and its affect.

“In the event Tenant [PATH] remains in possession of the Premises after expiration of the Term with the City’s prior written consent, such possession shall be deemed a month-to-month tenancy. . . . Moreover, nothing in this Section 3.4 shall be construed as City consent to a Tenant holdover, and City expressly reserves [its] right to require Tenant to surrender the Premises and the Improvements as provided herein upon expiration or other termination of this Lease. In all other respects, the month-to-month tenancy shall be governed by the provisions of this Lease. In the event Tenant remains in possession of the Premises or any portion thereof after expiration of the Term without City’s prior written consent, Tenant shall be a tenant at sufferance and, thus, have no right to any tenancy of or possessory interest in the Premises for any period of time.” (Weiss Decl., ¶ 5, Exhs. B, C.)

The court agrees Petitioner’s assertion that the Amended PATH Lease extends beyond three years mischaracterizes the lease. Rather, the plain language of the Amended PATH Lease requires the City to authorize in writing any extension of the lease beyond the three-year term.

The City concedes Charter sections 590 and 591 provide the RAP Board with control of all park sites and would be required to authorize use of the City’s park land. The City acknowledges RAP Board approval would also be required if the City sought to enter into a written agreement with PATH to extend the Amended PATH Lease term on a month-to-month basis.

It is undisputed the City has not authorized or sought to extend the term of the Amended PATH Lease beyond the lease’s three-year term. That is, nothing suggests at the conclusion of the three-year term of the Amended PATH Lease, PATH will continue its tenancy on a month-to-month basis.

Importantly, the Amended PATH Lease does not—unlike the original PATH Lease—allow PATH to unilaterally extend the term of the Amended PATH Lease. In fact, the Amended PATH Lease specifically states: “[A]ll other references in the Lease to any option to extend is similarly without any force or effect. PATH shall have no right or option to extend the original term of the Lease.” (Weiss Decl., Exh. C.) As such, PATH has no right to remain past the Amended PATH Lease term of three years.

Petitioner’s claim Section 3.4 of the Amended PATH Lease authorizes an extension of the lease term without RAP Board approval is not accurate. Instead, the Amended PATH Lease represents the possibility for the City to violate its Charter if the City failed to obtain RAP Board approval prior to entering into a written agreement to extend PATH’s lease term on a month-to-month basis. Such circumstances, however, are not present here. Whether facts may ripen to state a cause of action is, at best, uncertain. Finally, the court cannot assume the City will not comply with its Charter provisions or that its employees would act in conflict with them. (See Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 141. See also In re Petersen (1958) 51 Cal.2d 177, 185 [“it is presumed that the agency will duly perform its public duty”].)

That PATH’s lease to operate the shelter theoretically could be extended beyond the three-year term does not facially demonstrate an act exceeding the City’s authority. PATH’s tenancy may only be continued with the City’s written approval. The RAP Board’s approval of the City’s use of the parking lot in Griffith Park for the shelter terminates at the end of the term of the Amended PATH Lease. Should PATH and the City wish to extend the lease term, given the City’s authorization from the RAP Board is limited to the duration of the Amended PATH Lease (three years), the City will have to obtain approval from the RAP Board to extend the term of PATH’s lease because its authority from the RAP Board will have terminated.

Petitioner argues there is no functional difference between the one-year extension provision the City eliminated and the currently operative month-to-month hold over provision. (Reply 5:4-6. [“What was done with respect to ¶3.2 of the PATH/City lease (namely its excision from the lease) must also be done with respect to ¶3.4 of the lease (the hold-over provision).”]) The court disagrees. The PATH Lease conveyed to PATH a unilateral right the City did not have the authority to grant. By providing PATH with the unilateral right to extend the lease term, the City purported to convey rights it did not hold given the RAP Board’s time-limited authorization.

The Amended PATH Lease merely provides the City may exercise its discretion to extend the lease term on a month-to-month. That the RAP Board would have to approve the extension of the lease term is of no consequence. Nothing suggests the City has violated the Charter such that writ relief is warranted on these facts.

Finally, Petitioner claims the City Council wrongfully failed to exercise its Charter section 245 power to veto the RAP Board’s authorization to allow the City to use the park property for the shelter under the terms of the Amended PATH Lease. Petitioner contends the City Council had a duty to veto the RAP Board’s authorization because of section 3.4 in the Amended PATH Lease.

“Actions of boards of commissioners shall become final at the expiration of the next five meeting days of the Council during which the Council has convened in regular session, unless the Council acts within that time by two-thirds vote to bring the action before it or to waive review of the action. . . . (a) If the Council timely asserts jurisdiction over the action, the Council may, by two-thirds vote, veto the action of the board within 21 calendar days of voting to bring the matter before it, or the action of the board shall become final.”

Petitioner’s Charter section 245 claim is not entirely clear. Nonetheless, the court cannot issue a writ where there is no mandatory, non-discretionary ministerial duty implicated.

“A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his [or her] own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists. Discretion . . . is the power conferred on public functionaries to act officially according to the dictates of their own judgment. [Citation.]” (Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 501-502.) “Mandamus does not lie to compel a public agency to exercise discretionary powers in a particular manner, only to compel it to exercise its discretion in some manner.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700-701.)

Petitioner has identified no mandatory, ministerial duty demonstrating that the City was required to exercise its veto powers with respect to the RAP Board’s September 4, 2019 action. (Petition ¶¶ 2, 20; see also p. 2, fn. 1.) Petitioner’s position turns on its belief Section 3.4 allows the City and PATH to extend the lease term into perpetuity. As the court has rejected Petitioner’s legal claim, the City Council had no duty to veto the RAP Board’s authorization.

To the extent Petitioner contends the RAP Board had no authority to permit the City to enter into an agreement with PATH to provide a housing shelter, the court rejects the claim. As discussed at prior hearings, the RAP Board had such authority.

Accordingly, writ relief is unwarranted based on Petitioner’s claim grounded in Charter section 245.

The court is continuing the City’s motion for sanctions. The court will select a date for the hearing with counsel during argument.

[1] Petitioner also requests the court eliminate a hold-over provision in the sublease. Petitioner provides no authority to suggest the court can rewrite the terms of the sub-lease and bind the parties to the terms created by the court.

[2] The City contends Petitioner has not demonstrated it served PATH in this matter. While Petitioner reports PATH filed an answer, PATH did not file an answer in this case. (It did so in a related but not consolidated matter.) Petitioner’s proof of service for its third amended petition does not demonstrate service on PATH. Petitioner did, however, serve PATH with its Opening Brief. Whether Petitioner failed to serve an indispensable party herein need not be resolved given that the court orders no relief for Petitioner in this proceeding.

[3] The City filed objections to both Petitioner’s Opening Brief and Reply Brief. The City objected to “unsupported and irrelevant assertions of fact” allegedly contained in the briefs. Absent specific evidentiary objections, the court’s response is limited. The court recognizes several of the arguments made by Petitioner in this proceeding are unsupported with evidence.

[4] The operative petition is the Third Amended Petition filed August 23, 2021.