Judge Mitchell L. Beckloff, Case 22STCP03125 2023-05-03 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP03125, Date: 2023-05-03 Tentative Ruling

Respondent, the City of Los Angeles, moves for judgment on the first cause of action for a violation of Government Code section 54953 in the petition. Petitioner, Coalition for Safe Coastal Development, opposes the motion.

The City’s request for judicial notice of Exhibits A through E is granted. (Evid. Code, § 452, (b), (h).)

The petition alleges the City violated Government Code section 54950, et seq. (the Brown Act) by conducting committee hearings remotely and based on the manner the City takes public comment. (Pet. ¶¶ 2-6.) More specifically, the petition alleges while the City Council has conducted its meetings in person since May 2022, the City Council nonetheless continues to hold committee hearings remotely based upon an allegedly erroneous factual finding that in-person meetings would be unsafe. (Pet. ¶¶ 2, 19-29.) The petition acknowledges an amendment to Government Code section 54953 authorized the City Council to conduct its meetings virtually so long as the City Council makes a finding every 30 days that either “a. The state of emergency continues to directly impact the ability of members to meet safely in person” or “b. State or local officials continue to impose or recommend measure to promote social distancing.” (Pet., ¶ 16.) The petition alleges the City Council made the required findings without any factual support. (Pet. ¶¶ 17-18.) Petitioner alleges – upon information and belief – the City Council’s meeting practices prevented individuals from commenting on matters before the City Council and various committees when meetings overlapped or occurred close in time. (Pet. ¶ 27.)

The petition also alleges the City Council’s practice of holding a single 30-minute time limit on public comment for all agenda violates Government Code section 54954.3, subdivision (b). (Pet. ¶¶ 5-6, 38-49.)

Finally, the Petition alleges that the City has a pattern and practice, contrary to the Charter for the City of Los Angeles at section 242, subdivision (a), of routinely conducting less than three regular City Council meetings each week. (Pet. ¶¶ 33-34.) Petitioner alleges required agenda items to be condensed and is “prejudicial to the constitutional and statutory testimony and public comment rights of the public” in light of the City’s “facially unreasonable 30-minute public speaking lottery now conducted at the outset of each meeting.” (Pet. ¶ 36.)

Based on the foregoing, the petition alleges two causes of action. The first is for a writ of mandate requiring “nullification of actions taken at committee and City Council meetings.” (Pet. ¶¶ 53-64.) The second seeks declaratory and injunctive relief “to bar Respondent City’s patterns and practices” that violate the Brown Act. (Pet. ¶¶ 65-67.) Petitioner’s request for a writ of mandate seeks to “vacate and set aside approval of all items of business approved at the meetings held on June 9, 14, 15, 17 and 24, 2022 as outlined herein . . . .” The outlined items consist of the following: item 5 of the June 9, 2022 meeting of the City Council’s Homelessness and Poverty Committee (Pet., ¶ 57); item 14 of the June 15, 2022 City Council meeting (Pet., ¶ 59); item 1 of the June 14, 2022 Planning and Land Use Management Committee (Pet., ¶ 61); item 15 of the June 17, 2022 City Council meeting (Pet., ¶ 63); and item 35 of the June 24, 2022 City Council meeting. (Pet., ¶ 64.) To be clear, Petitioner “seeks nullification of a series of project approvals taken between June 9, 2022 and June 24, 2022 related to the Reese Davidson Project.” (Pet., ¶ 1.)

“[A] motion for judgment on the pleadings is the functional equivalent of a general

demurrer. . . . Indeed, the only significant difference between the two motions is in their timing.” (People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 691.) 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.) In fact, 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, sustaining 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 a petitioner to show how the complaint might be amended to cure any defect in the pleading. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302.)

The City argues the first cause of action for a writ of mandate is barred the statute of limitations. The City posits Petitioner has failed to join an indispensable party and is barred by the statute of limitations from doing so now.

The City notes Petitioner is expressly attacking the City’s approvals of the Reese Davidson Project. (Pet., ¶ 1.) Despite Petitioner’s attempt to set aside the approvals, however, Petitioner has not named the project’s developers (Developers)[1] as a real party in interest. Based on Petitioner’s omission, the City contends Petitioner should not be permitted to proceed in this litigation under Code of Civil Procedure section 389, subdivision (b).

A necessary party is one who “claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” (Code Civ. Proc., § 389, subd. (a).) If an entity is necessary, “courts then determine if the party is also ‘indispensable.’ ” (City of San Diego v. San Diego City Employees' Retirement System (2010) 186 Cal.App.4th 69, 83–84.)

Developers have obtained the City’s approval to proceed with their project, the Reese Davidson Project. Petitioner seeks to set aside that approval through its allegations the City violated provisions of the Brown Act during the approval process.[2] If Petitioner is successful, Developers will be impacted—their project approval will be set aside. By not naming Developers as a party, this litigation may impede Developers ability to project their interest in the project approval. In addition, if the City sets aside its approval of the project, the City will be subject to litigation brought by Developers. Accordingly, the court finds Developers are a necessary party to this litigation and should be joined in the litigation.

If Developers cannot be joined (based on the City’s claim the statute of limitations precludes joining Developers at this time), the court must determine whether Developers are indispensable parties to this litigation. That is, the court:

“shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.” (Code Civ. Proc., § 389, subd. (b).)

The factors to be considered by the court “are not arranged in a hierarchical order.” (County of San Joaquin v. State Water Resources Control Bd. (1997) 54 Cal.App.4th 1144, 1149.) No single factor is dispositive, and the court's consideration of the factors is fact dependent. (City of San Diego v. San Diego City Employees' Retirement System, supra, 186 Cal.App.4th at 84.) “Whether a party is necessary and/or indispensable is a matter of trial court discretion in which the court weighs factors of practical realities and other considerations.” (Ibid. [Cleaned up.]) Of “critical importance” for consideration of indispensable party status is “potential prejudice to that unjoined person . . . .” (Simonelli v. City of Carmel-by-the-Sea (2015) 240 Cal.App.4th 480, 485 [citation omitted].)

“Indispensable parties have been identified as those who are essential for ‘a complete determination of the controversy’ [citations] or the ability of a court to enter ‘any effective judgment’ [citation].” (Kaczorowski v. Mendocino County Bd. of Supervisors (2001) 88 Cal.App.4th 564, 568.) “ ‘[A] person is an indispensable party [only] when the judgment to be rendered necessarily must affect his rights.’ ” (Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 808.) “The controlling test for determining whether a person is an indispensable party is, ‘Where the plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest of a third person not joined, that third person is an indispensable party. [Citation.]’ ” (Save Our Bay, Inc. v. San Diego Unified Port Dist. (1996) 42 Cal.App.4th 686, 692 (Save Our Bay).)

Petitioner correctly and repeatedly notes there is no controlling authority identifying indispensable parties where enforcement of the Brown Act is sought. That no such precedent exists, however, is not determinative. Nothing suggests a claim under the Brown Act does not fall within Code of Civil Procedure section 389.

The City relies on Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495 (Sierra Club) to support its position before the court.

In Sierra Club, the petitioner sought to set aside a construction permit issued to a developer; the Court found such relief would “would directly affect, and undoubtedly injure, [the developer's] interests.” (Sierra Club, supra, 95 Cal.App.3d at 501.) The Court explained the developer was a necessary party to the litigation because that litigation could impair his ability to protect his interest in the action, and he could collaterally attack any judgment subjecting the agency to the risk of inconsistent obligations. (Ibid.) Finally, because the developer could not be joined in the action because the statute of limitations had run, the court concluded that dismissal was warranted because the developer was an indispensable party. (Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1188.)

Petitioner contends People ex rel. Lungren v. Community Redevelopment Agency (1997) 56 Cal.App.4th 868 (Lungren) undermines the City’s claim.

In Lungren, the Attorney General brought an action against a community redevelopment agency to set aside the agency's contract with an American Indian tribe; the Attorney General did not name the tribe as a party. The contract provided the redevelopment agency would transfer certain property to the tribe to assist the tribe with developing a gaming casino. The Attorney General challenged the legality of the redevelopment agency's relinquishment of city-owned property and placing it beyond the state's civil and criminal jurisdiction. The redevelopment agency sought dismissal of the Attorney General's complaint on the ground the tribe was an indispensable party not amenable to suit because of sovereign immunity.

Ultimately, the Court determined the tribe was not indispensable party, and questioned whether the action would impede the tribe's ability to protect its interest. The Court stated:

“The issue raised in the present case is the legality of the [redevelopment agency's] actions in agreeing to relinquish City-owned property and placing it beyond the reach of the civil and criminal jurisdiction of the state. The actions of the Tribe in entering into the [contract with the redevelopment agency] are not challenged. The Tribe's ability to look after its own interests in this setting would be limited to the opportunity to argue that the [redevelopment agency's] actions were permitted by California law. It would thus appear that, although the Tribe and the [redevelopment agency] have interests under the [contract] that are not identical, the Tribe's object in the present litigation—establishing that the Agency acted lawfully in entering into the [contract]—would duplicate that of the Agency and would be adequately represented by the Agency in the present litigation.” (Lungren, supra, 56 Cal.App.4th at 877.)

The court finds Lungren distinguishable.[3] The redevelopment agency and the tribe shared the same goal in litigation—upholding the validity of the contract. The redevelopment agency and the tribe had coextensive interests in the litigation. Thus, the tribe’s interest in the enforceability of the contract was adequately represented by the redevelopment agency’s defense of its own action. (See Pinto Lake MHP LLC v. County of Santa Cruz (2020) 56 Cal.App.5th 1006, 1016.)

Unlike the redevelopment agency and the tribe in Lungren, the City and Developers do not have coextensive interest in the litigation. The City’s interest focuses on Brown Act compliance, its decision making and open meetings. Developers must defend their project approval. Nothing suggests Developers may control the manner in which the City defends the litigation. The City could decide not to defend or conduct the action in a manner adverse to Developers’ interests. The City’s litigation decisions may also be guided by Petitioner’s claims of pattern and practice. (See Simonelli v. City of Carmel-by-the Sea, supra, 240 Cal.App.4th at 484.)

If this court issues a judgment favorable to Petitioner, the judgment would necessarily be prejudicial to Developers; Petitioner expressly seeks an order requiring that the approvals for Developers’ project be set aside and nullified.[4] Given Petitioner’s request and goal in this litigation, there would be no way to shape a judgment in favor of Petitioner that would avoid prejudice to Developers. Issuing a judgment in favor of Petitioner without joining Developers as a party would subject the City to litigation and possible inconsistent obligations.

Balanced against such considerations, the court is mindful a statute of limitations bar (as urged by the City) would preclude Petitioner from obtaining one of its litigation goals—set aside and nullification of the City’s approval of Developers’ project.[5] While Petitioner could proceed with its pattern and practice claim and obtain an injunction requiring the City to take certain actions in the future, Petitioner would not be permitted to move forward with its first cause of action leaving it without an adequate remedy.

After considering the relevant factors, the court finds Developers are indispensable parties. Most compelling to the court is the notion of prejudice the Developers will suffer and the possibility of inconsistent obligations for the City if Petitioner is successful in this litigation.

The City has asserted Developers—indispensable parties—may not be joined in this action based on the 90-day statute of limitations set forth in Government Code section 65009.[6]

“no action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision.” (Emphasis added.)

As argued by the City, Government Code Section 65009, subdivisions (c)(1)(A) through (c)(1)(D) apply to any challenge: “[t]o attack, review, set aside, void, or annul the decision of a legislative body . . . to adopt or amend a general or specific plan” (subd. (c)(1)(A)); “to adopt or amend a zoning ordinance” (subd. (c)(1)(B)); “[t]o determine the reasonableness, legality, or validity of any decision to adopt or amend any regulation attached to a specific plan” (subd. (c)(1)(C)); or to “adopt, amend, or modify a development agreement” (subd. (c)(1)(D)).

While the petition includes a long recitation of facts related to the City Council’s decision-making process and Brown Act requirements, the petition’s prayer specifically seeks an order compelling the City to “to vacate and set aside approval of all items of business approved at the meetings held on June 9, 14, 15, 17 and 24, 2022 as outlined herein, . . . .” (Pet., Prayer ¶ 1 [emphasis added].)[7] That is, while the Petition challenges the City’s general meeting practices without regard to the underlying substances of the meetings, the relief sought is to set aside specific meeting agenda items related “a series of project approvals taken between June 9, 2022 and June 24, 2022 related to the Reese Davidson Project.” (Pet., ¶ 1.)[8]

The City argues the meeting identified by Petitioner include the approval of a general plan amendment, adoption of a zoning ordinance, specific plan amendments, and the adoption of a development agreement. (City RJN, Exs. A-E.) The petition expressly notes approvals of the agenda items. (Pet., ¶¶ 57 [“was approved” re execution of development agreement], 59-50 [“was adopted” authorizing execution of development agreement], 61 [“was approved” re general and specific plan amendments], 63 [“was adopted” re general and specific plan amendments], and 64 [“was adopted” specific plan amendment].) Thus, the City argues Petitioner’s challenges all fall within the types of actions subject to Government Code section 65009, subdivision (c)’s 90-day limitations period.

Petitioner contends the statute of limitations set forth in the Brown Act applies here—not the “more general statute of limitations . . . .” (Opposition 17:24.) Petitioner argues the City’s position is “odd because a Brown Act cause of action does not contain any allegations attacking the merits of the granting of a permit, license, zoning variance, etc. which are prerequisites to triggering section 65009.” (Opposition 17:25-27.) Petitioner asserts for Government Code section 65009 to apply “the gravamen of the lawsuit must allege that the public agency substantively errored in approving types of plan amendments, zoning approvals or agreements.” (Opposition 18:11-12.) Petitioner cites no authority to bolster its position. More importantly, however, Petitioner does not confront Government Code section 65009, subdivision (c)’s generalized prohibition on actions or proceedings to attack or set aside more than 90-days after certain legislative action and does not explain how its reading of Government Code section 65009, subdivision (c)(1) demonstrates it applies only to substantive attacks on legislative decisions—the plain language of the statute does not support Petitioner’s position.

The court agrees with the City. Petitioner’s legal theory is of no consequence. Government Code section 65009, subdivision (c) focuses on an “action” and the result of a successful legal theory in that action—what is the goal of the litigation? Where the legal theory asserted in the “action” results in the set aside of a general and specific plan amendment, the adoption of a development agreement and the adoption of a zoning ordinance, Government Code section 65009, subdivision (c)’s statute of limitations is triggered.[9] Cloaking an attempt to set aside the project approvals in an alleged Brown Act violation does not insulate the attack from the 90-day statute of limitations.[10]

Petitioner’s position suggests the court should ignore the limitations period that expressly applies to the types of set asides or nullifications requested here. Instead, the court must harmonize the Brown Act and Government Code section 65009 such that neither statue is rendered obsolete. (See e.g., Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1123.) A challenger can satisfy both statutes. A harmonized reading of the statutes means irrespective of Petitioner’s Brown Act claim, because Petitioner is seeking to set aside certain legislative decisions made by the City Council, Petitioner must also comply with Government Code section 65009 and an action must be brought within 90 days of the legislative action.

Based on the foregoing, the City’s motion for judgment on the pleadings. As the single remaining cause of action for declaratory relief and injunction is based on the City’s alleged pattern and practice of violating the Brown Act, the court is inclined to transfer the matter to Department 1 for reassignment to an independent calendar courtroom.

[1] Developers are Hollywood Community Housing Corporation and Venice Community Housing.

[2] Developers’ entitlements are an interest relating to the subject of the action—the Brown Act violation (and the remedy of set aside) allegedly occurred in the process of approving Developers’ project.

[3] Deltakeeper v. Oakdale Irrigation Dist. (2001) 94 Cal.App.4th 1092, 1096 is no more helpful to Petitioner. While certain entities had not been joined as parties in the litigation, other named parties had identical economic interests in a challenged agreement and those in the litigation “can be expected to argued vigorously in favor of the adequacy of the EIR.” As discussed infra, the City’s interests and those of Developers are not identical. “A party’s ability to protect its interests is not impaired or impeded as a practical matter where a joined party has the same interest in the litigation.” (Id. at 1102.)

[4] Petitioner reports “the indispensable party test must be applied to achieve fairness.” (Opposition 14:9.) If Petitioner is successful in this litigation, Developers will lose their entitlements. In no sense is such a result fair where the party holding those entitlements has not been heard because Petitioner elected not to name Developers as

[5] Both parties acknowledge Petitioner has directly challenged the City’s project approvals in three other pending proceedings before the court. Thus, Petitioner’s direct attack on the approvals is not impacted by a finding Developers are indispensable parties here. That the second cause of action has not been challenged allows Petitioner to continue its general pattern and practice claim against the City. (Reply 3:2; Opposition 18:12-15. [“The Project’s entitlements have been challenged in three other lawsuits grounded in CEQA and/or Planning Code violations. In each of those lawsuits the City and [Developer] were named parties, and the lawsuits were filed and served in accordance with section 65009.”])

[6] Petitioner initiated this proceeding on August 22, 2022 and served on the City Clerk on August 25, 2022. Petitioner did not name Developers as a party and have not served them with the petition.

[7] The Prayer also seeks “declaratory and injunctive relief to bar Respondent City’s patterns and practices . . . .” (Pet., Prayer ¶ 2.)

[8] The relief sought in the petition is consistent with the relief sought in the Brown Act pre-litigation demand letter: “TO CURE AND CORRECT THE CITY’S MEETINGS APPROVING ELEMENTS OF THE REESE DAVIDSON PROJECT.” (Pet. Ex. 1, p. 9; see also Pet. ¶¶53-64 [listing only action items relating to the Reese Davidson Project].) As noted earlier, the outlined items consist of the following: item 5 of the June 9, 2022 meeting of the City Council’s Homelessness and Poverty Committee (Pet., ¶ 57); item 14 of the June 15, 2022 City Council meeting (Pet., ¶ 59); item 1 of the June 14, 2022 Planning and Land Use Management Committee (Pet., ¶ 61); item 15 of the June 17, 2022 City Council meeting (Pet., ¶ 63); and item 35 of the June 24, 2022 City Council meeting. (Pet., ¶ 64.)

[9] Government Code section 65009, subdivision (c) does not require a “substantive challenge of the entitlements or agreement.” (Opposition 6:2-3.) The statute focuses on actions and proceedings and their litigation objective—set aside of certain development related decisions. The form of the action or proceeding is of no consequence.

[10] For example, case law interpreting Government Code section 66499.37 explains the statute must be broadly construed to apply “regardless of the nature of or label attached to the action challenging the legislative body's subdivision-related decision . . . .” (Presenting Jamul v. Board of Supervisors (1991) 231 Cal.App.3d 665, 671.) “The court [in Presenting Jamul v. Board of Supervisors] stressed that section 66499.37 applies to any challenge to a subdivision-related decision, regardless of the ‘legal stratagems’ employed, whether the challenge is ‘procedural or substantive,’ and whether it ‘directly or indirectly’ attacks the legislative or advisory body's ‘action or inaction.’ ” (Friends of Riverside's Hills v. City of Riverside (2008) 168 Cal.App.4th 743, 750.)