Judge: Mitchell L. Beckloff, Case: 21STCP03121, Date: 2022-12-09 Tentative Ruling

Case Number: 21STCP03121    Hearing Date: December 9, 2022    Dept: 86

WILSHIRE GAYLEY, LLC v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY

Case Number: 21STCP03121

Hearing Date: December 9, 2022

[Tentative]       ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

Petitioner, Wilshire Gayley, LLC, seeks a preliminary injunction enjoining Respondents, City of Los Angeles (City) and Los Angeles County Metropolitan Transportation Authority (Metro), from taking the following actions:

As to Metro:

1. interfering with the City, including Los Angeles Department of Building and Safety (LADBS), permitting process with respect to Petitioner’s development pursuant to Vesting Tentative Map No. 70935 that is the subject of this proceeding;

    

2. further grading, shoring, excavation, or trenching, proximate to Petitioner’s westerly property line until Metro completes all necessary and appropriate structural, geotechnical, and geologic studies, showing and ensuring that Metro’s public project at UCLA Lot 36 will not endanger or interfere with the excavation, development, construction, safety and security of Petitioner’s project, including the project’s zero lot-line foundation; and

As to Metro and the City:

imposing new conditions for development of the Petitioner’s project that are not found in the City’s prior approvals for Petitioner’s project or in the Building Code as approved in Vesting Tentative Map No. 70935.

Respondents separately oppose the motion.

Metro’s objection to Petitioner’s two reply briefs—in response to two oppositions—is overruled.[1] Metro’s general objection to the rebuttal evidence is overruled.

The motion is DENIED.

Petitioner’s request for judicial notice of items 1 through 3 is granted. (Evid. Code, § 452, subds. (c) and (d). While the court takes judicial notice of the Declaration of Kimberly Ong as a court record, the court may not take judicial notice of the facts detailed therein.

Metro’s request for judicial notice of Exhibit 1 is granted. (Evid. Code, § 452, subd. (h).)

Metro’s objections to Petitioner’s evidence: The following objections are overruled (to some extent relying on evidence offered to supplement the initial motion) – 4, 7, 13 and 14. The following objections are sustained – 1 (relevance), 2 (as to contents of document), 3 (as to contents of document), 5, 6, 8, 9 (relevance), 11 (relevance), 12 and 14.  

LEGAL STANDARD

The standards governing a preliminary injunction are well known. “[A] court will deny a preliminary injunction unless there is a reasonable probability that the plaintiff will be successful on the merits, but the granting of a preliminary injunction does not amount to an adjudication of the merits.” (Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858, 866.) “The function of a preliminary injunction is the preservation of the status quo until a final determination of the merits.” (Ibid.)

As the parties recognize, “Trial courts traditionally consider and weigh two factors in determining whether to issue a preliminary injunction. They are (1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction.” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) “[T]he greater the . . . showing on one, the less must be shown on the other to support an injunction.” (Ibid. [quoting Butt v. State of California, (1992) 4 Cal.4th 668, 678].) The burden of proof is on the plaintiff as the moving party “to show all elements necessary to support issuance of a preliminary injunction.” (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)

Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. (See e.g., Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150.) A plaintiff seeking injunctive relief must also show the absence of adequate damages remedy at law. (Code Civ. Proc., § 526, subd. (a)(4).)

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. (See Code Civ. Proc., § 529, subd. (a); City of South San Francisco v. Cypress Lawn Cemetery Ass’n (1992) 11 Cal. App. 4th 916, 920.)

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ANALYSIS

Petitioner has alleged a claim under Code of Civil Procedure, section 1085 (Section 1085) as well as for declaratory relief.  (See Reply 4:10-11.) The claims contain overlapping factual and legal issues. Therefore, the court addresses the claims together.[2]

Likelihood of Success on the Merits:

The facts are largely undisputed. Petitioner contends it will likely succeed on the merits of its claims because: “The law does not authorize Metro or LADBS to subvert [Petitioner’s] development rights by unlawfully denying permits to, or imposing new permit conditions on, [Petitioner.]” (Motion 18:5-6.) Petitioner’s theory of success is based on two grounds. First, Petitioner contends its Project must be evaluated under ordinances, standards and policies in effect in 2009. Second, Petitioner argues the City and Metro cannot use ZI 1117 to avoid issuing Petitioner a permit. (Motion 18:7-8, 25-26.)

In 2009, Petitioner applied for approval of its project to construct a high-rise building at the intersection of Wilshire Boulevard and Gayley Avenue in the Westwood area of the City (the Project). In July 2010, the City approved Petitioner’s request for certain land use entitlements, including a Vesting Tentative Map No. 70935 (VTM), for the Project.[3] The VTM expires on July 2, 2023. (First Amended Petition [FAP] ¶ 37.) The City issued 97 pages of conditions with the VTM approval. (FAP ¶ 2.)

In 2012, Metro approved the extension of the Purple Line Subway from its Wilshire/Western station westerly into the Westwood area. (FAP ¶¶ 31-33, Ex. 5)

In late 2019, the City’s Department of Building and Safety (LADBS) deemed Petitioner’s permit application complete and began the plan check review process. (FAP ¶ 7.) To begin plan check, LADBS issued a clearance summary worksheet which included a list of approvals needed from City departments to obtain a building permit. The worksheet included a single item for Metro:

“Construction within Metro Rail Planning Area (ZI-2410).” (FAP ¶ 8.)

Zoning Information (ZI) 2410 provides:

“Prior to the issuance of any building permit meeting the below criteria within an identified Metro Rail planning area (five hundred foot radius of future alignments), consultation with the [Metro] is required.” (FAP, Ex. 6.)

ZI 2410 explains:

“Examples of construction activities that require Metro review include: borings, tunneling, seismic retrofitting and excavators, new structures, additions of 500 square feet or greater, and free-standing signs.” (FAP, Ex. 6.)

ZI 2410 contemplates and accepts a “telephonic clearance” from Metro. (FAP, Ex. 6.) The permit application must note “the name of the Metro employee providing the clearance, the date the clearance was obtained, the plan check engineer who obtained the clearance, and the ZI number.” (FAP, Ex. 6.)

The City and Metro have an agreement concerning building permits for development projects within 100 feet of Metro-owned rail or bus rapid transit rights of way. Pursuant to ZI 1117 (inter-department correspondence), building permit applicants must “submit project information to Metro.” (City Opposition 2:21.)

On October 22, 2021, LADBS requested Petitioner provide an addendum to its soils report analyzing the currently existing soil conditions at the Project site. (Chang Decl., ¶ 7, Ex. A.) Specifically, Charles Chang, the High Rise and Non-Ductile Concrete Building Plan Check Chief at LADBS, advised Petitioner to “[g]et an addendum letter to the soils report to include the underground tunnel/station’s effect and mitigate for the design of the highrise building with the approval of LADBS Grading Division.” (Chang Decl., ¶ 7, Ex. A.)

Petitioner seeks declaratory relief that ZI 1117—purportedly providing Metro with broad permit clearance rights—does not apply to the Project. (FAP ¶ 81.)

Petitioner also requests a writ of mandate pursuant to Section 1085:

“compelling Metro: (i) to refrain from interfering with [Petitioner’s] permitting process with the City so [Petitioner] may pull permits in the ordinary course without interference by Metro, including, but not limited to the main building permit and early start permits for excavation and shoring, (ii) to refrain from all current and future interference with the permitting process between [Petitioner] and the City concerning the Project; (iii) to remove or otherwise waive any and all conditions that Metro asserts a right to approve, which conditions were imposed or requested by Metro after the Project vested and/or after the Project application was deemed complete; and (iv) to remove Metro clearance from [the Plan Check and Information System] for the Project. [Petitioner] seeks a further writ of mandate from [the] Court preventing Metro from imposing any future conditions on the Project that would impair [Petitioner’s] ability to pull permits.” (FAP ¶ 84.)

Distilled to their essence, Petitioner’s claims contend ZI 1117 (allegedly providing broad permit clearance authority to Metro) cannot be applied to the Project. According to Petitioner, application of Z1 1117 under these circumstances violates Government Code section 66498.1 and Los Angeles Municipal Code (LAMC) section 12.32. Q 2, subdivision (a).

Government Code section 66498.1, subdivision (b) provides:

“When a local agency approves or conditionally approves a vesting tentative map, that approval shall confer a vested right to proceed with development in substantial compliance with the ordinances, policies, and standards described in Section 66474.2. However, if Section 66474.2 is repealed, that approval shall confer a vested right to proceed with development in substantial compliance with the ordinances, policies, and standards in effect at the time the vesting tentative map is approved or conditionally approved.”

Government Code section 66498.1, subdivision (c) provides:

“Notwithstanding subdivision (b), the local agency may condition or deny a permit, approval, extension, or entitlement if it determines any of the following:

1. A failure to do so would place the residents of the subdivision or the immediate community, or both, in a condition dangerous to their health or safety, or both.

2. The condition or denial is required in order to comply with state or federal law.”

   [Emphasis added.]
   
   

Finally, Government Code section 66498.1, subdivision (e) provides:

“Consistent with subdivision (b), an approved or conditionally approved vesting tentative map shall not limit a local agency from imposing reasonable conditions on subsequent required approvals or permits necessary for the development and authorized by the ordinances, policies, and standards described in subdivision (b).”

LAMC section 12.32. Q 2, subdivision (a) provides:

The approval of a vesting application shall confer a vested right to proceed with a development in substantial compliance with the rules, regulations, ordinances, zones and officially adopted policies of the City of Los Angeles in force on the date the application is deemed complete, and with the conditions of approval imposed and specifically enumerated by the decision maker in its action on the vesting application case. These rights shall not include exemption from other applications or approvals that may be necessary to entitle a project to proceed (i.e., subdivision, parcel map, zone variance, design review, etc.) and from subsequent changes in the Building and Safety and Fire regulations contained in Chapters V and IX of the Los Angeles Municipal Code found necessary by the City Council to protect the public health and safety and which are applicable on a citywide basis and policies and standards relating to those regulations or from citywide programs enacted after the application is deemed complete to implement State or Federal mandates.

Petitioner argues under Government Code section 66498.1, the VTM conferred on Petitioner the “vested right to proceed with development, in substantial compliance with the ordinances, policies, and standards” that existed in 2009 when its VTM application was deemed complete. (Motion 18:9-11.) Petitioner explains Government Code section 66598.1 “effectively freezes in place the ordinances, policies, and standards in effect at the time the vesting tentative map application is determined to be complete.” (Kaufman & Broad Central Valley, Inc. v. City of Modesto (1994) 25 Cal.App.4th 1577, 1588; see Bright Development v. City of Tracy (1993) 20 Cal.App.4th 783, 793.) Petitioner asserts requiring it “to comply with conditions imposed by Metro or LADBS more than a decade after the VTM was approved and Ordinance No. 181487 was passed would not only destroy the purpose of securing vesting rights under the Subdivision Map Act, but it would frustrate due process and legislative intent.”[4] (Motion 19:9-16.)

Certainly, as a general matter, Petitioner’s position based on its VTM is correct. Once the City deemed Petitioner’s application complete, the City may “apply only those ordinances, policies, and standards in effect” to determine entitlements. (Gov. Code, § 66474.2, subd. (a).)

Petitioner’s analysis of its vested rights under the VTM, however, is not complete. It omits any consideration of Government Code section 66498.1, subdivision (c) raised by the City. (City Opposition 3:2-5.)

As noted earlier, Government Code section 66489.1, subdivision (c) provides an exception to Petitioner’s vested rights under its VTM and condition or deny a permit where “[a] failure to do so would place the residents of the subdivision or the immediate community, or both, in a condition dangerous to their health or safety, or both.” (Gov. Code, § 66489.1, subd. (c)(1).) Thus, “notwithstanding the rights created by either a development agreement or a vesting tentative map, the local agency may apply subsequent regulations to the project if it determines failure to do so would create a condition dangerous  to the public health or safety. (Gov. Code, §§ 65865.3, subd. (b) and 66498.1, subd. (c)(1).)” (Davidson v. County of San Diego (1996) 49 Cal.App.4th 639, 649 [emphasis added].)

Moreover, the exception to vested rights under a VTM in Government Code section 66489.1, subd. (c)(1) is not inconsistent with the City’s general police powers. A municipality “has broad authority, under its general police power, to regulate the development and use of real property within its jurisdiction to promote the public welfare.” (California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 455.) “Land use regulation in California has been a function of local government under the grant of police power contained in article XI, section 7 of the California Constitution.” (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1151.) Accordingly, cities and counties are empowered to adopt general plans, specific plans, zoning ordinances, and other ordinances regulating the development of property within their jurisdictions. (Id. at pp. 1151-1152; Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1010; Land Waste Management v. Contra Costa County Bd. of Supervisors (1990) 222 Cal.App.3d 950, 957.)

The parties here do not dispute the City has concerns related to the Project’s stability in a significant seismic event based on circumstances that have changed since 2009. The City submits evidence that “LADBS is unsure whether the soil conditions adjacent to the Project provide sufficient lateral support to ensure safe construction of the Project as currently designed. Additionally, LADBS is concerned that a sufficiently large seismic event could cause life-endangering damage to the Project due to soil conditions at the site.” (Chang Decl., ¶ 6.) To address those concerns, “[n]otwithstanding” Government Code section 66498.1, subdivision (b), the City (through LADBS) has conditioned a building permit on “an addendum letter to a soils report analyzing the currently existing soil conditions at the site of the proposed Project.” (Chang Decl., ¶ 7, Ex. A.)

The City also represents its concerns are independent from any issues created by ZI 1117. The City explains it “would not issue permits in this situation even if [] ZI 1117 was not in effect . . . . LADBS regularly conditions building permits on the health and safety of a project’s future residents or users.” (Chang Decl., ¶ 10.)

Finally, the court finds no error in the City’s consultation with Metro in the performance of its duties. That is, Petitioner has not demonstrated the City’s consultation and reliance on Metro’s input in the permitting process to effectuate its statutory authority was improper. That the City elected to require Petitioner to obtain a soils report addendum after consultation with Metro does not run afoul of the law.

Petitioner also relies on the City’s adoption of its Ordinance No. 181487 to support its position Metro is precluded from interfering with the Project. (Motion 19:1-2.) According to Petitioner, Ordinance No. 181487 sets forth the conditions applicable to the Project and provides: “Prior to submission to the City for approval, [Petitioner] shall provide a set of the project’s engineering drawings to [Metro] to allow it to comment on such plans. [Petitioner] shall not be required to accept any comments from [Metro].” (FAP ¶ 25 [Ex. 4, at pg. Q-9])

Again, Petitioner’s argument is incomplete. The City’s Ordinance No. 181487 states as to Metro:

“15. Subway Panel. Prior to issuance of a building permit, the project applicant shall use good faith efforts to work with the Metropolitan Transportation Authority (MTA) to design and engineer the Project so that an additional pedestrian entrance (temporary knock-out panel) to a future Wilshire/Gayley Metro Transit Station, to the extent that MTA plans for an entrance at this location, can be provided at the Project Site.

Prior to submission to the City for approval, the project applicant shall provide a set of the Project's engineering drawings to MTA to allow it to comment on such plans. The project applicant shall not be required to accept any comments from MTA.

The project applicant may, at its sole and absolute discretion and in exchange for lawful consideration, provide an easement over the project site to MTA for such purposes. The project applicant shall not be required to provide an easement for a pedestrian entrance to the Transit Station on the southeast corner of Wilshire Boulevard and Gayley Avenue as a condition of this grant of approval.” (FAP ¶ 25 [emphasis added].)

Condition 15 specified in Ordinance 181487 concerns “an additional pedestrian walkway entrance” for the Project. The condition is entitled “Subway Panel” and later references “such plans.” That Petitioner is not “required to accept any comments from MTA” relates only to “such plans”—“an additional pedestrian walkway entrance.”

The court finds Petitioner’s suggestion Ordinance 181487 is the source of the City’s ministerial, non-discretionary duty precluding input from Metro not persuasive.

Metro also submits additional evidence showing the ordinances, policies and standards in place in 2009 when the City approved the VTM included ZI 1117: The agreement between the City and Metro states:

“MTA has established with the City a ZI-1117 permit process to identify existing or proposed transit facilities and require projects within the MTA project limits to obtain MTA concurrence prior to final plan sign off. MTA shall have the right to final permit sign off. MTA shall have the right to refuse to allow any such construction, which directly impacts an existing transit facility or the construction of a Transit Project. Also, should MTA determine that a proposed new City facility or construction by others, not related to or required because of the MTA projects, will delay or otherwise conflict with the construction of a Transit Project or any portion thereof, MTA shall have the right to condition the installation of such facility or other construction upon such relocation, modifications, and/or scheduling adjustments as mutually agreed to between the City and MTA.” (Metro RJN Ex. 1, p. 29.)

Thus, under the agreement between the City and Metro, nothing prohibits the City from consulting with Metro in the performance of its duties under Government Code section 66498.1, subdivision (c). (Metro RJN Ex. 1, p. 29.) In fact, the parties’ agreement suggests a long-standing history of cooperation between MTA and City under like circumstances.  

Petitioner—having the initial burden on this motion and ultimately its petition—is required to show the City failed to comply with a mandatory, ministerial, nondiscretionary duty. Petitioner has not met its burden in its case-in-chief on its motion and therefore does not shift any burden to the City or Metro. (Motion 19:20-22. [“Neither Metro, nor LADBS, can point to any law, standard, rule, or regulation authorizing LADBS to cede the power to issue permits for the entitled Project to Metro or allowing LADBS or Metro to demand new conditions for the Project.”])

Finally, Petitioner contends, in response to Metro, Metro “assumed the duty to design around and protect the safety and security of the Project.” (Reply to Metro 7:11-12.) Petitioner’s legal authorities are inapposite. The court notes to the extent Petitioner takes issue with Metro’s design, it was up to Petitioner to timely challenge the City’s approval of Metro’s project.[5]

Based on the foregoing, the court finds Petitioner has demonstrated little, if any, probability of prevailing on the merits of its claim under Section 1085 and related declaratory relief.

Balance of Harms:

The second part of the preliminary injunction analysis requires the court to evaluate the harm the plaintiff is likely to sustain if the preliminary injunction is denied compared to the harm the defendant is likely to suffer if the injunction is issued. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70.)

On the balance of harms, Petitioner argues:

“Metro has no business digging next to [its] Property knowing that it is actively removing the lateral and subjacent support of [Petitioner’s] Property, even as it continues to study the safety of its project. (Civil Code § 832.) Trial is July 14, 2023. A temporary pause in Metro's excavation until then is needed to stop further damage to [Petitioner’s] Property, to preserve the status quo pending resolution on the merits, and to allow Metro to solve the engineering problems of its making.” (Reply to Metro 10:7-11.)

Petitioner’s balance of harms analysis is confused in the context of its legal argument regarding its success on the merits position. Petitioner’s merits argument focuses on the City’s decision to impose a particular condition (preparation of an addendum to the soils report) on the Project after approving the VTM. Assuming Petitioner is successful at overcoming the additional condition imposed by the City, the court’s resulting order would compel the City to issue a building permit to Petitioner. An order compelling the City to issue a building permit would not operate to stop Metro’s excavation and grading for its Purple Line extension project.

To obtain relief halting Metro’s project construction, Petitioner must assert some claim other than the City failed to comply with its ministerial, non-discretionary duty to issue a building permit. The causes of action, as alleged, do not support a claim against Metro resulting in an order that Metro cease excavation and grading. (See, e.g., FAP ¶¶ 79-82 [Metro may not impose conditions under ZI 1117, ZI 1117 is not condition of approval], ¶¶ 83-86 [right to proceed under 2009 application].) Petitioner’s claim “Metro’s Station project came to the existing and entitled Project, subject to [Petitioner’s] rights; not the other way around,” is insufficient to obtain relief against Metro because it is untethered to any legal theory.[6]

As to the balance of harms, Petitioner argues there is a risk of harm to Petitioner’s ability to proceed with the Project where the City and Metro both admit they are unsure about subjacent and lateral support caused by Metro’s excavation and grading. Thus, it appears Petitioner concedes the City’s health and safety concerns are well taken.[7] As such, the ultimate relief sought in this writ petition—an order stopping the City from imposing any new condition on Petitioner and compelling it to issue a building permit—would threaten the health and safety of the community near the Project. The balance of harms would therefore weigh substantially in favor of the City, and its request a preliminary injunction be denied. Petitioner cannot show the injunction should be granted given the balance of harms and the risk of substantial harm to the community.

Moreover, both the City and Metro suggest the condition imposed would result in, at most, a monetary injury (the cost of the addendum to the soils report) to Petitioner. Of course, the City and Metro overlook the additional delay in the face of a VTM set to expire in just over six months, July 2, 2023. The expiration of the VTM, however, is not directly related to the condition, and the extent of delay and whether any such delay is significant is not clear. To the extent the soils report is the damage suffered, monetary damages would fully protect Petitioner.

Additionally, Metro submits evidence an injunction halting its construction would increase the cost of the project by $150,000-$200,000 per day. There is also evidence delay would put at risk Metro’s funding agreement with the Federal Transit Administration. (Ong Decl., ¶¶ 3-14.)

Finally, the court acknowledges the “general rule against enjoining public officers or agencies from performing their duties.” (Tahoe Keys Property Owners' Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1472-1473.)

Accordingly, the court finds that the balance of harms weighs in Metro’s favor and the City’s interest in protecting the public. As noted, Petitioner has not demonstrated irreparable harm in the context of its claims—failure to issue (or more precisely, a delay in issuing) a building permit.  

CONCLUSION

Based on a balance of the likelihood of success on the merits and the parties’ competing harms, the court finds Petitioner is not entitled to a preliminary injunction.

IT IS SO ORDERED.

December 9, 2022                                                                 ________________________________

                                                                                                                   Hon. Mitchell Beckloff

                                                                                                                   Judge of the Superior Court