Judge Mitchell L. Beckloff, Case 21STCP00733 2022-08-31 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP00733, Date: 2022-08-31 Tentative Ruling

Petitioner, Redeemer Community Partnership, seeks an order compelling Respondent, the City of Los Angeles and its fire department, to direct the Fire Chief to comply with section 57.5706.3.16.1 of the Los Angeles Fire Code.[1] Petitioner contends the Murphy Drill Site at 2126 West Adams Boulevard in the City contains two non-operating oil wells—wells 12 and 21.[2] (Petition ¶ 22.) According to Petitioner, the non-operational status of wells 12 and 21 requires the City’s Fire Chief to issue a written notice to the wells’ operator to either abandon or reactivate the non-operating wells.[3] Petitioner reports abandoned and non-operating wells, like wells 12 and 21, pose a significant risk to community health and safety.[4]

The City opposes the petition. The City contends a state agency, California Geologic Energy Management Division (CalGEM)[5] is responsible for regulating the oil wells.

The Petition is DENIED. As Petitioner’s request for declaratory and injunctive relief is derivative of its writ of mandate claim, Petitioner is entitled to no relief.

The Fire Code places certain responsibilities on Respondent regarding oil and gas extraction sites throughout the City, including requiring drill site operators to obtain an operational permit and to post and maintain surety bonds before drilling, operating or maintaining any oil well. (RJN Ex. A at pp. 8-10, 18.)

The Fire Code also establishes requirements for managing non-operating oil wells with detailed procedures for abandoning such wells and penalties for failing to do so. Relevant here is LAMC section 57.5706.3.16.1 (the Notice Provision). The Notice Provision provides:

Any oil well which has not been secured in compliance with the provisions of Section 57.5706.3.15, or which, for a continuous period of one year has not been in operation or has ceased to produce petroleum or natural gas, shall either be abandoned or reactivated within 30 days after notice has been given by the Chief.

CalGEM is the state agency responsible for monitoring and regulating oil and gas extraction in California. (Petition ¶ 26.) California Code of Regulations, title 14, section 1937.1, subdivisions (d) and (e) require oil well operators to file monthly production reports. The monthly production reports track the amount of oil and gas produced from each production well and the amount of fluid or gas injected into each well during the month. CalGEM is the agency responsible for implementing and enforcing the regulation. (Petition ¶ 27; RJN Ex. 3 at p. 25.) CalGEM organizes monthly production reports in its WellSTAR database by API number and the information is accessible by the public.

Unlike CalGEM, the City does not independently track the amount of oil produced monthly from each well or the amount of fluid or gas injected into each well during the month. (Igawa Decl. ¶ 3. [“Fire Inspectors perform a general, annual Fire Life Safety Inspection of oil wells in the City, which is an annual visual surface inspection of oil wells and the facilities located at the site as it pertains to the Fire Code. This means [the City’s fire department] does not inspect anything below the dirt, Inspectors simply look at what is visible at the surface.”]; see also Petition ¶ 28 [as to the Murphy Drill Site only].) Instead, the City conducts an annual above-the- ground examination of oil wells, which may include feeling pipes and looking at gauges. (See generally Igawa Decl. ¶ 3.) “[The City’s fire department] does not rely on any CalGEM data for its physical inspections of wells.” (Id. ¶ 4.)

The Murphy Drill Site consists 33 oil wells, including 23 production wells and 10 injection wells, (Petition ¶ 25.) The site is located in a residential neighborhood with zoning permitting multi-family dwellings, schools, churches, and health care facilities. (RJN Ex. 8 at p. 46.) According to the 2015-2019 American Community Survey from the United States Census Bureau, 14,415 people live within a half-mile radius of the Murphy Drill Site. (Id. Ex. 7, p. 43.)

On March 11, 2020, Petitioner wrote to the City and requested the Fire Chief issue a notice to require the operator of the Murphy Drill Site to abandon or reactivate the non-operating wells at the site. Petitioner made its request pursuant to the Notice Provision. (Id. ¶ 29, Ex. 1.) Petitioner supported its request with the operator’s monthly production reports submitted to CalGEM. The report revealed wells 12 and 21 at the site not been in operation or had ceased to

produce petroleum or natural gas for a continuous period of one year. (Id. ¶¶ 27, 32; see also Opening Brief 10:8-10 and Reply 8:10-12.)

On May 7, 2020, the City inspected the Murphy Drill Site and determined well 21 was not operating. (Petition ¶ 33.) The City issued a notice to the operator to either abandon or reactive well 21 within 30 days. (Ibid.)

On June 5, 2020, the City re-inspected well 21. The City determined the well operator had reactivated it. (Petition ¶ 34; Opening Brief Ex. A at p. 24.)

After the City received the petition, fire inspectors investigated the Murphy Drill Site. (Igawa Decl. ¶ 6; Rodriguez Decl. ¶¶ 3-4.)

On April 19, 2022, Fire Inspector Isaac Rodriguez conducted a Fire Life Safety Inspection of wells 12 and 21 at the Murphy Drill Site. (Rodriguez Decl. ¶ 5.) Rodriguez’s inspection revealed both wells 12 and 21 were operating. (Id. ¶ 6.) As to well 12, Rodriguez heard and felt hydraulics, indicating the well was functioning, felt the pipes flowing, saw pressure in the well’s gauge, and saw brown/yellowish liquid flowing out of a bleed valve. (Id. ¶¶ 7-10, Ex. 1-4.) As to well 21, Rodriguez heard and felt the pipes functioning, felt the pipes flowing, saw pressure in the well’s gauge, and smelled gas coming from the bleed valve. (Id. ¶¶ 11-15, Ex. 5-8.)

Petitioner seeks relief through the petition pursuant to Code of Civil Procedure section 1085.

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.”

“There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually 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.)

Code of Civil Procedure section 1085 provides for a traditional writ of mandate to issue 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 . . . .” Code of Civil Procedure section 1085 is the proper vehicle for challenging a ministerial action (or inaction) of an agency, such as a mandatory duty to issue regulations. (Morton v. Bd. of Registered Nursing (1991) 235 Cal.App.3d 1560, 1566 fn. 5.) Relief under Code of Civil Procedure section 1085 may generally only be obtained where some non-discretionary duty is in issue. Additionally, where all other elements of traditional mandamus are satisfied writ relief may only be obtained in “cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” (Code Civ. Proc. § 1086; Pomona Police Officers’ Ass’n v. City of Pomona (1997) 58 Cal.App.4th 578, 583-584.)

"Ordinary mandamus may be used to compel the performance of a duty that is purely ministerial in nature or to correct an abuse of discretion.” (American Board of Cosmetic Surgery v. Medical Board of California (2008) 162 Cal.App.4th 534, 539

A “duty is ministerial when it is the doing of a thing unqualifiedly required.” (Galzinski v. Somers (2016) 2 Cal.App.5th 1164, 1170.) Ministerial actions “ ‘are essentially automatic based on whether certain fixed standards and objective measurements have been met.’ ” (Sustainability of Parks, Recycling and Wildlife Legal Defense Fund v. County of Solano Dep’t of Resource Mgmt. (2008) 167 Cal.App.4th 1350, 1359 quoting Calvert v. County of Yuba (2006) 145 Cal.4th 613, 623.) A ministerial act is non-discretionary. It is “an act that [an officer] is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a given set of facts exists.” (California Ass’n of Prof. Scientists v. Department of Fin. (2011) 195 Cal.App.4th 1228, 1236.)

“When there is review of an administrative decision pursuant to Code of Civil Procedure section 1085, courts apply the following standard of review: ‘[J]udicial review is limited to an examination of the proceedings before the [agency] to determine whether [its] action has been arbitrary, capricious, or entirely lacking in evidentiary support, or whether [it] has failed to follow the procedure and give the notices required by law.’ [Citations.]” (Id. at p. 584.)

Where, as here, the court is required to interpret municipal ordinances, the court does so

“in the same manner and pursuant to the same rules applicable to the interpretation of statutes. [Citations.]” (City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1087.)

“Although statutory construction is ultimately a judicial function, ‘ “ the contemporaneous construction of a statute by an administrative agency charged with its administration and interpretation, while not necessarily controlling, is entitled to great weight and should be respected by the courts unless it is clearly erroneous or unauthorized [citations].” ‘ [Citation.]” (Ibid.)

The deference provided to the agency, however, is situational. Courts give greater deference to an agency’s interpretation of a regulation or ordinance where “the agency has expertise and technical knowledge, especially where the legal text to be interpreted is technical, obscure, complex, open-ended, or entwined with issues of fact, policy, and discretion.” (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12 (Yamaha); see Citizens for Beach Rights v. City of San Diego (2017) 17 Cal.App.5th 230, 241.)

Finally, courts presume the agency’s interpretation is “likely to be correct” where there are “indications of careful consideration by senior agency officials” or “the agency ‘has consistently maintained the interpretation in question.’ ” (Yamaha, supra, 19 Cal.4th at 13; see Citizens for Responsible Equitable Environmental Development v. City of San Diego (2010) 184 Cal.App.4th 1032, 1041-1042.) “[A]n agency’s view of the meaning and scope of its own [zoning] ordinance is entitled to great weight unless it is clearly erroneous or unauthorized.” (Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1015.) However, “ ‘[w]hatever the force of administrative construction . . . final responsibility for the interpretation of the law rests with the courts.’ “ (San Francisco Fire Fighters Local 798 v. City and County of San Francisco (2006) 38 Cal.4th 653, 668.)

While the parties dispute whether the City made the correct determination that the subject wells are operating, a more fundamental issue is raised by the petition: Does the Notice Provision create a non-discretionary, ministerial duty upon the Fire Chief such that the court could issue a writ commanding the Fire Chief to take certain action?

Petitioner asserts “[t]he Notice [Provision] requires the Fire Chief to issue a written notice to the operator of a non-operating well to either abandon or reactivate the well within 30 days of receiving such notice.” (Reply 4:6-9; Petition ¶ 38.) The court disagrees. The Notice Provision does not support Petitioner’s position. It does not require the Fire Chief to take any action.

The Notice Provision directs an oil well operator to take certain action after receiving notice from the Fire Chief. The Notice Provision does not create any duty on the Fire Chief. Contrary to Petitioner’s position, the provision does not “require[] the Fire Chief to issue a notice . . . .” The Notice Provision does not state, for example, where the Fire Chief determines a well has not been in operation or has ceased to produce petroleum for a continuous period of one year, the Fire Chief shall give written notice the well must be abandoned or reactivated within 30 days.

While Petitioner focuses on the plain language of the Notice Provision, Petitioner does not explain how it reads the Notice Provision to create a non-discretionary, mandatory ministerial duty on the Fire Chief. (Reply 4:22-24.) “ ‘A ministerial duty is an act that a public officer is obligated to perform in a prescribed manner required by law when a given state of facts exists.’ [Citation.]” (National Asian American Coalition v. Newsome (2019) 33 Cal.App.5hh 993, 1007.) “ ‘A duty is ministerial when it is the doing of a thing unqualifiedly required.’ [Citation.]” (Galzinski v. Somers (2016) 2 Cal.App.5th 1164, 1170.) Nothing in the Notice Provision requires the Fire Chief to take any action.

“is to establish the minimum requirements consistent with nationally recognized good practice for providing a reasonable level of life safety and property protection from the hazards of fire, explosion, panic, or dangerous conditions in new and existing buildings, structures and premises; and to provide a reasonable level of safety to fire fighters and emergency responders during emergency operations.” (LAMC § 57.101.3.)

The Fire Chief as “the duty . . . to enforce the provisions of” the Fire Code. (Id. at § 57.103.1.1.) While the Fire Chief has broad powers in enforcing the Fire Code, “he also exercises considerable discretion in deciding how it should be applied.” (Sutherland v. City of Fort Bragg (2000) 86 Cal.App.4th 13, 24 [mandatory duty and civil liability].)

Absent Petitioner identifying a mandatory, non-discretionary, ministerial duty, the court cannot provide Petitioner with any relief in this proceeding. The court cannot find the Fire Chief failed to perform a ministerial, non-discretionary mandatory duty on these facts.

[1] The Fire Code is found in the Los Angeles Municipal Code (LAMC) at section 57.101.1 et seq.

[2] According to Petitioner, the Murphy Drill Site is owned by the Los Angeles Roman Catholic Archdiocese.

[3] The petition involved five wells—wells 9, 19, 21, 22 and 31. Petitioner addresses only wells 12 and 21 in its Opening Brief.

[4] Petitioner provides background information and evidence concerning the safety risks of abandoned and non-operating wells. (E.g., Opening Brief 6:20-8:2.) While helpful, the background information does not inform on Petitioner’s request for relief pursuant to Code of Civil Procedure section 1085.

[5] CalGEM is within the California Department of Conservation.