Judge Mitchell L. Beckloff, Case 22STCP01432 2022-10-21 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP01432, Date: 2022-10-21 Tentative Ruling

Respondents, Edmund Louie and Deborah Kotani, also separately demur to the first amended petition. Louie and Kotani’s demurrer is unopposed.

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civil Proc. § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State (2008) 161 Cal.App.4th 242, 247.)

A demurrer may be sustained without leave to amend when there is no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at 318.) Indeed, where the facts are not in dispute and the nature of the plaintiff's claim is clear, but no liability exists under substantive law and no amendment would change the result, the sustaining of a demurrer without leave to amend is proper. (City of Ceres v. City of Modesto (1969) 274 Cal. App. 2d 545, 554.) The burden is on the plaintiff to show how the complaint might be amended to cure the defect. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302.)

The City demurs to the first amended petition on the grounds Petitioner’s claims are untimely, and Petitioner failed to exhaust his administrative remedies as to the claims.

As a preliminary matter, the City argues Petitioner’s challenge is not to the 2021 grading and excavation permits. The City argues Petitioner challenges the underlying 2016 hillside development permit. If the City’s position is correct, Petitioner may not proceed on his claim because it is time barred, and he failed to exhaust his administrative remedies.

The City also argues even assuming Petitioner’s action is properly brought under Code of Civil Procedure section 1085, Petitioner’s claim is untimely pursuant to Civil Code section 338.

A mandate proceeding brought under Code of Civil Procedure section 1085 is subject to statutes of limitations that are determined “depend[ing] on the right or obligation sought to be enforced.” (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 821.) Civil Code section 338, subdivision (a) establishes a three-year statute of limitations for “an action upon a liability created by statute . . . .” That is, Civil Code section 338, subdivision (a), governs “[a]n action to enforce a statutory obligation.” (Urban Habitat Program v. City of Pleasanton (2008) 164 Cal.App.4th 1561, 1578.)[2]

Thus, given Petitioner’s nearly six-year delay in bringing this action, it is time barred under Code of Civil Procedure section 1085.

The City also argues its issuance of the 2016 hillside development permit is not subject to judicial review because Petitioner failed to exhaust his administrative remedies.

The City explains in February 2016, Louie and Kotani applied for a hillside development permit and other related approvals to construct a pool in the backyard of their property. (Pet. Exh. 2, p. 2.) The South Pasadena Planning Commission considered the application at a public hearing on May 23, 2016. (Pet. Exh. 2.) Thereafter, on May 23, 2016, the South Pasadena Planning Commission adopted Resolution 16-13 approving the hillside development permit sought by Louie and Kotani. (City RJN Ex. A.)

“Any interested person may appeal this decision or any portion of this decision to the City Council. Pursuant to the South Pasadena Municipal Code, any such appeal must be filed with the City, in writing, and with the appropriate appeal fee, no later than fifteen (15) days, following the date of the Planning Commission’s final action.”

Petitioner does not allege that he appealed the planning commission’s decision to issue the hillside development permit. In fact, in the federal complaint attached to the original petition, Petitioner alleges he did not attend the public hearing on the hillside development permit because he believed the City would not approve it. (Pet., RJN Ex. AA, p. 9 ¶¶ 24-25.)[3] Although Petitioner informally asked the City to intervene, nothing in Petitioner’s pleading or documents attached to the pleading suggest Petitioner appealed the planning commission’s decision. (See generally FAP; see also Pet., RJN Ex. AA, p. 9-10 ¶¶ 26-28.) As a result, Petitioner has not alleged he exhausted his administrative remedies after the planning commission’s decision to issue the hillside development permit.

Nonetheless, the relief Petitioner seeks through this proceeding is not entirely clear. Therefore the court cannot find Petitioner may not seek judicial review based on the statute of limitations or a failure to exhaust.

“Petitioner is seeking this alternative Writ of Mandate Order from this Court to stop immediately the ongoing construction of an elaborate project located in the backyard of Petitioner’s next door neighbor (the ILLEGALLY PERMITTED PROPERTY) that is proceeding as a result of the hazardous permits endangering Petitioner that were issued by Respondent SOUTH PASADENA illegally on August 04, 2021 (See EXHIBIT 1 attached hereto and incorporated herein by this reference), based on a 2016 Staff Report (See EXHIBIT 2 attached hereto and incorporated herein by this reference), without a public hearing and without an updated Staff Report after the original permits issued originally in 2017 had expired (See EXHIBIT 3 attached hereto and incorporated herein by this reference), and was no longer legally viable. Both the 2021 and 2017 permits were issued based upon Respondent SOUTH PASADENA’s Staff Report prepared in 2016 that was rife with lies and misrepresentations by the City of South Pasadena Planning Staff, who misled the Planning Commission into approving permits that violated an array of laws and ordinances as well as igniting hazardous conditions at the point of implementation.” (FAP ¶ 8; see also FAP ¶ 15.)

The first amended petition suggests the permits issued in 2021 by the City may not be in compliance with the 2016 hillside development permit. (FAP ¶10.) Specifically, the first amended petition states “[t]he elaborate grading/excavation was conducted without requiring a Geotechnical Report, also known as Soil Report, so there likely will be Site Stability problems.” (FAP ¶ 10(B).) The first amended petition further alleges the 2016 “Staff Report for the predecessor Project approved in 2016 required a Drainage Plan none exist so there is the prospect of flooding and water damage, the impact of which cannot be anticipated.” (FAP ¶ 10(C).) Finally, the first amended petition seeks to compel the City to revoke building and grading permits issued in 2021—not the 2016 hillside development permit.

The lack of clarity in the first amended petition is problematic on demurrer. The court is unable to discern Petitioner’s claim of error by the City as to building and grading permits. As such the court will sustain the demurrer but grant leave to amend to provide Petitioner with the opportunity to clarify his claim. To the extent Petitioner’s claim contends the City breached a duty or abused its discretion when it issued the 2016 hillside development permit, the claim is time barred.

Louie and Kotani demurer to the first amended petition on the grounds Petitioner has failed to state a Code of Civil Procedure section 1085 claim against them.

A writ of mandate will lie to “compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station” (Code Civ. Proc. § 1085) “where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” (Code Civ. Proc. § 1086.) The writ will issue against a county, city or other public body or against a public officer. (Housing Authority v. City of L.A. (1952) 38 Cal.2d 853, 869–871; Hawthorn v. City of Beverly Hills (1952) 111 Cal.App.2d 723, 731.) Code of Civil Procedure section 1085 permits judicial review of ministerial duties as well as quasi-legislative and legislative acts. (County of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 972.)

Louie and Kotani note the first amended petition names them as “respondents” as to the Code of Civil Procedure section 1085 claim. (FAP ¶¶ 3-4.) Louie and Kotani’s involvement in the proceeding, however, is limited to their role as Petitioner’s neighbors and the legal owners of the property for which the City issued various permits. (FAP ¶ 6.)

Petitioner’s prayer for relief in the first amended petition request an order that “Respondent [] set aside and revoke the Permit issued to” Louie and Kotani’s property. (FAP, Prayer ¶ 1.) The prayer also requests a stay of any construction undertaken pursuant to the permit on the property. (FAP, Prayer ¶ 2.)

Louie and Kotani’s position Petitioner cannot state a claim against them under Code of Civil Procedure section 1085 is correct. They are not governmental actors and did not issue any permits. While Louie and Kotani are “Real Parties in Interest” in this proceeding as their property interests could be impacted, Louie and Kotani are not properly named as “Respondents.”

Petitioner’s opposition to the City’s demurrer requests the court delay ruling on the demurrers until the court has heard Petitioner’s motion (filed October 18, 2022) for leave to file a second amended petition. The court notes the proposed second amended petition continues to identify Louie and Kotani as Respondents.

[1] Although Petitioner alleges a Code of Civil Procedure section 1085 claim (FAP ¶¶ 16-18), the City argues Petitioner’s claim arises from Code of Civil Procedure section 1094.5. The City argues the decision at issue here followed a public hearing and decided with general standards as applicable to the facts peculiar to the parcel. (Dem. 13:2-5 [citing Horn v. County of Ventura (1979) 24 Cal.3d 605, 614. [“Subdivision approvals, like variances and conditional use permits, involve the application of general standards to specific parcels of real property. Such governmental conduct, affecting the relatively few, is ‘determined by facts peculiar to the individual case’ and is ‘adjudicatory’ in nature.”]) Whether the claim is a properly heard under Code of Civil Procedure section 1094.5 or Code of Civil Procedure section 1085 claim is not determinative here. The statute of limitations is an issue under either statute.

[2] Arguably, the shorter time period set forth in Government Code section 65009 applies. Government Code section 65009 is intended “ ‘to provide certainty for property owners and local governments regarding decisions made pursuant to this division’ (§ 65009, subd. (a)(3)) and thus to alleviate the ‘chilling effect on the confidence with which property owners and local governments can proceed with projects’ [citation] created by potential legal challenges to local planning and zoning decisions.” (Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 765.) Subdivision (c)(1)(E) of Government Code section 65009 applies “[t]o attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit.”

[3] The first amended petition requests the court take judicial notice of the court records. (FAP ¶ 15(B).)