Judge Randolph M. Hammock, Case 22STCV21354 2022-12-23 Tentative Ruling

Judge: Randolph M. Hammock, Case: 22STCV21354, Date: 2022-12-23 Tentative Ruling

Plaintiffs Peter R. Katz and Teresa M. Katz are the trustees of the Peter R. Katz and Teresa M. Katz 1998 Family Trust dated June 9, 1998. Plaintiffs hold an undivided 50% interest in three real property lots at North Laurel Canyon Boulevard—Plaintiff Zoe Lynn Katz owns the other 50%. The lots contain two single family residences.

Plaintiff brings this action against Defendant City of Los Angeles and the Los Angeles Department of Building and Public Safety. Plaintiffs allege the City has wrongfully cited them for, among other things, removing accumulated silt and debris from the property and repairing an existing retaining wall. Defendant also wrongfully required that two of the lots be “tied.” Plaintiffs bring this action for (1) declaratory relief and injunctive relief, (2) negligence, (3) negligent misrepresentation, and (4) negligent interference with prospective economic relations.

Defendants’ Demurrer to the Second, Third, and Fourth Causes of Action is also SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing.

Pursuant to Defendant’s request, and without opposition, the court takes judicial notice of Exhibits A through K. The court takes judicial notice of the exhibits without assuming the truth of the assertions contained therein. (See Seelig v. Infinity Broad. Corp. (2002) 97 Cal. App. 4th 798, 808.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

Defendant argues this present action should be stayed pending resolution of the mandamus proceeding under the plea of abatement doctrine, or relatedly, the rule of exclusive concurrent jurisdiction. They argue the “Katzes’ prior lawsuit involves the same parties as the current, newer lawsuit and the same primary right, which relates to the Katzes’ purported injuries arising from the City’s enforcement against code violations at the Katzes’ construction project. Thus, a final decision in the Katzes’ prior lawsuit will have res judicata effect on the Katzes’ newer lawsuit, which is why that newer lawsuit should be stayed under this doctrine.” (Dem. 13: 11-16.)

“A plea in abatement pursuant to section 430.10, subdivision (c), may be made by demurrer or answer when there is another action pending between the same parties on the same cause of action. [Citation.] In determining whether the causes of action are the same for purposes of pleas in abatement, the rule is that such a plea may be maintained only where a judgment in the first action would be a complete bar to the second action. [Citation.] Where a demurrer is sustained on the ground of another action pending, the proper order is not a dismissal, but abatement of further proceedings pending termination of the first action.” (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal. App. 3d 781, 787–88.) “[T]he remedies sought in the separate actions need not be precisely the same so long as the court exercising original jurisdiction has the power to litigate all the issues and grant all the relief to which any of the parties might be entitled under the pleadings.” (Id.) However, “abatement is not appropriate where the first action cannot afford the relief sought in the second.” (Laws. Title Ins. Corp. v. Superior Ct., 151 Cal. App. 3d 455, 459.) The proper time to raise a plea in abatement is in the original answer or by demurrer at the time of the answer. (The Rossdale Grp., LLC v. Walton (2017) 12 Cal. App. 5th 936, 943.)

Plaintiffs’ opposition does not directly address plea in abatement or exclusive concurrent jurisdiction. Rather, they note only that on November 8, 2022, the Court trying the Mandamus Proceeding denied its Notice of Related Case. In the Minute Order, the Court stated that it “does not relate 21STCP03476 and 22STCV21354. The former case is a mandamus proceeding which will be tried on the record. The newer case contains causes of action for declaratory and injunctive relief and damages, for which plaintiff could request a court or jury trial. The writ and receivers departments do not conduct court or jury trials.” (Plaintiffs’ Exh. 1.)

Defendant has not shown that plea in abatement is available here. As the other court noted in finding the cases not related, the cases offer different forms of relief. Accordingly, the mandamus action “cannot afford the relief sought” in the instant case. (Laws. Title Ins. Corp., supra, 151 Cal. App. 3d at 459.) In addition, this later case brings causes of action for negligence not asserted in the mandamus proceeding.

However, it does appear that exclusive concurrent jurisdiction is available. The “judge-made rule” of exclusive concurrent jurisdiction “is based upon the public policies of avoiding conflicts that might arise between courts if they were free to make contradictory decisions or awards relating to the same controversy and preventing vexatious litigation and multiplicity of suits. [Citation.] The rule is ‘a judicial rule of priority or preference and is not jurisdictional in the traditional sense of the word,’ in that it ‘does not divest a court, which otherwise had jurisdiction of an action, of jurisdiction.’ [Citation.] Because it is a policy rule, application of the rule depends upon the balancing of countervailing policies.” (Travelers Indem. Co. v. Lara (2022) 84 Cal. App. 5th 1119.) “Although the rule of exclusive concurrent jurisdiction is similar in effect to the statutory plea in abatement, it has been interpreted and applied more expansively, and therefore may apply where the narrow grounds required for a statutory plea of abatement do not exist. [Citation.] Unlike the statutory plea of abatement, the rule of exclusive concurrent jurisdiction does not require absolute identity of parties, causes of action or remedies sought in the initial and subsequent actions.” (Plant Insulation Co., supra, 224 Cal. App. 3d at 788.)

Here, deciding the claims in this court—particularly that for declaratory relief, asserted in both actions—presents the real risk of conflicting rulings. It is also possible that a judgment in the mandamus proceeding could have preclusive effect in this suit, as they involve the same primary rights. “[A] judgment on the merits in a mandamus proceeding is res judicata and is conclusive on all issues that were raised or could have been raised in the proceeding.” (Fed'n of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal. App. 4th 1180, 1205.) Thus, staying the action during the resolution of the mandamus proceeding is supported by the parties’ rights, interests, and judicial economy.

Defendant also argues the Second, Third, and Fourth causes of action fail because the Government is immune from suit—it does not demurrer to the first cause of action for declaratory relief on this ground. Defendant cites numerous code sections purporting to provide it immunity but focuses its discussion on Government Code section 820.2.

Section 820.2 provides: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” In turn, the entity itself is also “not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (Gov. Code § 815.2.) Defendant argues the code section applies here, as “City inspectors investigated the Katzes' project and, after exercising their discretion to determine what code violations were present, wrote up orders to comply.” (Dem. 16: 5-8.) The rely on Los Angeles Municipal Code section 98.0403.1 (a)(I)(3), which grants the Department “the power to enforce all ordinances and laws relating to the construction, alteration, repair and demolition, or removal of buildings or structures in the City . . . The Department is granted the power to enforce the zoning ordinance of the City.” (RJN, Exhibit K.)

In opposition, Plaintiff argues its “negligence claims should not be barred by governmental immunities because the government's acts and omissions at issue were mandatory and/or ministerial, and not discretionary.” (Opp. 7: 21-24.) “For instance, Plaintiff did not perform grading on the Property but instead removed silt and debris. There was no discretion on the part of the Defendant to characterize the work as grading. Furthermore, Defendant had no discretion to characterize Plaintiffs repair of decorative walls, not retaining walls, as work on retaining walls that would require a permit. Defendant also had no discretion to require the lots to be tied…” (Opp. 9: 20-25.) Plaintiffs also argue that Defendant had no discretion to issue the correction notices. (Opp. 10: 21-23.)

Plaintiffs’ opposition states, rather conclusory, that the “government’s acts and omissions at issue were mandatory and/or ministerial, and not discretionary.” However, their analysis does not further that position. Plaintiffs rely solely on Thompson v. City of Lake Elsinore, but with little explanation as to why the case controls here. There, the plaintiff sued a city for negligence and related claims for the city’s refusal to issue the plaintiff a certificate of occupancy for her property and failure to issue a building permit, despite “compl[ying] with all the appropriate building codes, regulations and requirements in completing her renovation.” (Thompson v. City of Lake Elsinore (1993) 18 Cal. App. 4th 49, 53.) The court granted the city’s demurrer based on government immunity.

On appeal, the Court found that the City’s decision not to issue a building permit was discretionary, and thus subject to immunity. However, as to the City’s failure to issue the certificate of occupancy, the Court found the statutory text made it mandatory, because in issuing a certificate, “the building official had already exercised its discretion.” (Id. at 58 [emphasis in original].) “[E]ven if the building official is immune for its discretionary act in determining whether or not the certificate should be issued (i.e., that the building complies with the relevant requirements), the building official had in fact—by its “Final Inspection Okay”—already actually approved owner's building. The allegations of owner's complaint, which again, we accept as true, sufficiently state that she had complied with every applicable regulation. Accordingly, the building official retained no further discretion to withhold the certificate of occupancy.” (Id. at 58.) Thus, this case demonstrates the accepted and undisputed principle that mandatory acts are not subject to immunity.

However, Plaintiffs do not demonstrate that any of the acts complained of here were mandatory, as opposed to discretionary. The court agrees with Defendant that the Department necessarily exercised its discretion in characterizing Plaintiff’s actions as “grading” rather than removal of debris. The same is true of its discretion to classify Plaintiff’s acts as constructing retaining walls, rather than repairing existing ones. Moreover, Plaintiff cites no case or statutory authority suggesting that the Department’s other acts were mandatory, rather an exercise of its discretionary authority. Thus, Defendant is immune from suit as to the Second, Third, and Fourth causes of action.

Accordingly, Defendant’s Demurrer to the Second, Third, and Fourth Cause of Action is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.