Judge: Mitchell L. Beckloff, Case: 23STCP03827, Date: 2024-04-05 Tentative Ruling

Case Number: 23STCP03827    Hearing Date: April 5, 2024    Dept: 86

LEE v. LOS ANGELES CITY ETHICS COMMISSION

Case Number: 23STCP03827

Hearing Date: April 5, 2024

[Tentative]       ORDER SUSTAINING DEMURRER

Respondent, Los Angeles City Ethics Commission, demurs to the Verified Petition for Writ of Mandate filed by Petitioner, John Lee. Petitioner opposes the demurrer.

Respondent’s request for judicial notice is granted.

The demurrer is sustained with 21 days leave to amend.

APPLICABLE LEGAL STANDARD

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 of California (2008) 161 Cal.App.4th 242, 247.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The allegations in the petition must be liberally construed in favor of Petitioner on demurrer. (See Mobil Oil Corp. v Exxon Corp. (1986) 177 Cal.App.3d 942, 947.) “A demurrer must dispose of an entire cause of action to be sustained.”  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

ALLEGATIONS IN THE PETITION

The petition alleges Petitioner “is the City Councilor for CD 12.” (Pet. ¶ 1.)

On June 6, 2023, Respondent’s Director of Enforcement submitted a probable cause report “from alleged incidents that took place in 2016 and 2017 which they alleged to have found from unsealing of the indictment against Mitch Englander on March 9, 2020.” (Pet. ¶ 6.)

A probable cause report may not used to commence administrative enforcement proceedings more than four years after the date of the alleged violation. (Pet. ¶ 17 [quoting Los Angeles Administrative Code (LACC) section 24.26, subd. (a)(2).)

The probable cause report did not establish facts to support a tolling of the statute of limitations on enforcement proceedings. (Pet. ¶¶ 23-25.)

A probable cause conference was conducted on August 31, 2023. (Pet. ¶ 28.) On September 22, 2023, the hearing officer made a probable cause determination. (Pet. ¶ 29.) The hearing officer found probable cause and that the Director of Enforcement “sufficiently alleged concealment such that it tolled the Statute of Limitations until March 9, 2020, . . . .” (Pet. ¶ 31.)

ANALYSIS

Respondent asserts Petitioner’s first cause of action under Code of Civil Procedure section 1085 is “improper.” (Memo 2:17.) Respondent also contends Petitioner has failed to adequately plead exhaustion of administrative remedies. (Memo 2:19-20.) Finally, Respondent argues injunctive relief is improper. (Memo 2:21.)

              Exhaustion of Administrative Remedies

The court agrees Petitioner has failed to adequately allege he has exhausted his administrative remedies.

Exhaustion of administrative remedies is “a jurisdictional prerequisite to judicial review.” (California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1489.) “The exhaustion requirement applies whether relief is sought by traditional (Code Civ. Proc., § 1085) or administrative (Code Civ. Proc., § 1094.5) mandamus.” (Eight Unnamed Physicians v. Medical Executive Com. (2007) 150 Cal.App.4th 503, 511.) “Before seeking judicial review a party must show that he has made a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.”  (Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 520.) There are exceptions to the exhaustion requirement, including “when the subject of the controversy lies outside the administrative agency’s jurisdiction, when pursuit of an administrative remedy would result in irreparable harm, when the administrative agency cannot grant an adequate remedy, and when the aggrieved party can positively state what the administrative agency's decision in his particular case would be.” (Ibid.)

As noted by Respondent, LACC section 24.27, subdivision (e)(1)(E) appears to provide Petitioner with a remedy to address his view the hearing officer’s probable cause determination was incorrect. Pursuant to the provision, Petitioner make request a hearing on the statute of limitations matter because such a matter is “not related to the truth or falsity of the factual allegations.” (LACC, § 24.27, subd. (e)(1)(E).)

Because Petitioner does not plead exhaustion or some exception to it,[1] Respondent’s position is well taken. That is, Petitioner may pursue his statute of limitations defense during the administrative hearing on the probable cause report.

              Traditional vs. Administrative Mandate

While Respondent asserts Petitioner may not proceed by traditional mandate here (Code of Civil Procedure section 1085), the court disagrees. As noted by Petitioner, traditional mandate may be appropriate here. For a traditional writ to issue, the agency must have a ministerial duty. Here, as argued by Petitioner, the LACC provides the ministerial duty. A failure to comply with the LACC’s statute of limitations provisions is a failure to comply with a duty.

That said, it appears Petitioner’s traditional mandate claim is duplicative of his traditional mandate claim.

In his opposition, however, it appears Petitioner contends Respondent has a pattern and practice of bringing enforcement proceedings when the statute of limitations has expired. (Opposition 6:1-3.) To the extent Petitioner intends to allege a pattern and practice, he has not done so in the petition.

If Petitioner wishes to proceed with a pattern and practice claim, the court will grant leave to amend.

              Injunctive Relief

An injunction is a remedy; it is not a cause of action. Petitioner has not labeled the paragraphs in his petition seeking injunctive relief as a cause of action. It appears Petitioner seeks an injunction as well as a writ of mandate (traditional or administrative) as a remedy for the wrong he has allegedly suffered.

Respondent’s demurrer to the remedy is not well taken. Any challenge to the remedy should be by way of a motion to strike.

CONCLUSION

Based on the foregoing, the demurrer is sustained with 21 days leave to amend. Petitioner must plead exhaustion of administrative remedies (or that exhaustion is excused). To the extent Petitioner is alleging a pattern and practice, he must allege facts to support his claim for relief under Code of Civil Procedure section 1085, otherwise his challenge appears to be ground in administrative mandate. Finally, Respondent’s demurrer to Petitioner’s remedy is overruled.

IT IS SO ORDERED. 

April 5, 2024                                                                                          

________________________________ 

Hon. Mitchell Beckloff  

Judge of the Superior Court