Judge: Ronald F. Frank, Case: 22TRCP00203, Date: 2023-01-26 Tentative Ruling

Case Number: 22TRCP00203    Hearing Date: January 26, 2023    Dept: 8

Tentative Ruling¿¿ 

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HEARING DATE:                 January 26, 2023

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CASE NUMBER:                  22TRCP00203 

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CASE NAME:                        New Commune DTLA, LLC; Leonid Pustilnikov v. City of Redondo Beach; and City Counsil of the City of Redondo Beach

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MOVING PARTY:                Plaintiffs/Petitioners, New Commune DTLA, LLC and Leonid Pustilnikov

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RESPONDING PARTY:       Respondent/Defendant, City of Redondo Beach

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TRIAL DATE:                        Not set.

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MOTION:¿                              (1) Motion for Leave to File First Amended Petition

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Tentative Rulings:                  (1) GRANT

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I. BACKGROUND¿¿¿ 

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A. Factual¿¿¿ 

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This is a traditional writ of mandamus action challenges the City of Redondo Beach’s (“Respondent”) recent update to the “housing element” portion of its general plan. The action was brough pursuant to Government Code 65751, et seq. Among other things, the Verified Petition for Writ of Mandate (“Petition”) alleges that Respondent failed to comply with provisions of the Government Code that requires the housing element to include an inventory of sites that can be realistically developed for housing within the near term (“Residential Site Inventory”.)

Government Code section 6573 provides that such an action is to proceed on an expedited basis (See Cal. Gov. Code e § 65753 [requiring a request for hearing to be made within 90 days of the filing of the petition and indicating the hearing or trial on the merits should be set within 120 days of that request].) As such, Petitioner/Plaintiffs assert that they served targeted Requests for Production of Documents on July 12 ,2022, seeking communications and other documents related to the housing element process, specifically, documents that refer or relate to the inclusion or proposed inclusion of various sites in the Residential Sites Inventory. Plaintiff also asserts that the administrative record is still not completed, an issue raised with the Court at a previous hearing. 

Plaintiff now wishes to amend their pleading and file a First Amended Petition.

B. Procedural¿¿¿ 

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On December 28, 2022, Plaintiff/Petitioner filed this Motion for Leave to Amend Pleadings and File First Amended Petition. On January 12, 2023, Defendant/Respondent filed an opposition. On January 19, 2023, Plaintiff/Petitioner filed a reply brief.

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¿II. ANALYSIS¿¿ 

A.    Legal Standard

 Leave to amend is permitted under Code of Civil Procedure section 473, subdivision (a) and section 576. The policy favoring amendment and resolving all matters in the same dispute is “so strong that it is a rare case in which denial of leave to amend can be justified. . ..” “Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only ‘where no prejudice is shown to the adverse party . . .. [citation].  A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation].” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.)  

A motion for leave to amend a pleading must also comply with the procedural requirements of California Rules of Court, Rule 3.1324, which requires a supporting declaration to set forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. (See Cal. Rules of Court, rule 3.1324, subds. (a), (b).) 

B.     Discussion

Petitioner seeks to amend the Petition to: (1) Provide updated and additional facts regarding the City of Redondo Beach’s (“City”) actions, since the filing of the Petition for Writ of Mandate, related to the City’s adoption of a revised 6th Cycle Housing Element; and (2) Provide limited new factual allegations supplementing Petitioners’ existing claims concerning the City’s failure to obtain voter approval of the housing element as required by Article 27 and Section 27.5 of the Redondo Beach Charter.  Petitioner asserts that its proposed FAP is fundamentally derivative of the same claims and relief that Petitioners already allege and seek in their original Petition for Writ of Mandate, and largely concerns the same documents, same parties, and same common nucleus of facts.

In opposition, Respondents argue that Petitioners’ leave to amend should be denied because Petitioners’ motion is untimely, Respondents will be harmed, and the amended pleading fails to state a cause of action so the proposed amended petition is, per the City, subject to demurrer.

Petitioner notes that its counsel sent the City’s counsel a copy of the proposed FAP and requested that they stipulate to its filing on November 23, 2022. (Howell Decl., ¶ 7.) Petitioner further notes that at the December 1, 2022 status conference, the City indicated they needed more time to consider that request and the Court accordingly continued the status conference until December 16 (at which time it scheduled this Motion). (Howell Decl., ¶¶ 8-9.) Plaintiff contends that the Motion was thus promptly filed once the City indicated it was unwilling to stipulate to the filing. Lastly, Petitioner argues that City ignores the fact that the proposed amendment was motivated in part by the fact that the City indicated in late September that it intended to argue that the original Petition was moot, based on the same facts alleged in the proposed FAP. (Motion, p. 9; Howell Decl., ¶ 6.) As such, Petitioner prepared the proposed FAP and requested the City stipulate to its filing within approximately two months of the City first taking that position.  On the fact presented, the Court does not believe Petitioner unreasonably delayed in pursuing an amended petition or in filing the motion for leave to amend. 

            Respondents assert that they would be prejudiced if this Court granted the filing of Petitioners’ motion, because the FAC would fundamentally change the nature of the Petition.  The City argues that by revising the first cause of action to add a claim related to the Charter and by changing their relief sought in the prayer. Respondents argue that Petitioners should dismiss the prior action and refile a new action in light of the presumptive effect of HCD’s determination that the City is in full compliance with the Housing Element law. However, the relevant statute expressly contemplates that an action challenging the validity of such a housing element may be brought notwithstanding HCD approval. (Gov. Code § 65589.3, emph. added [“In any action filed . . . to challenge the validity of a housing element, there shall be a rebuttable presumption of the validity of the element or amendment if, pursuant to Section 65585, the department has found that the element or amendment substantially complies with the requirements of this article.”]  While the Court is not giving an advisory opinion on a demurrer that has not yet been filed, Section 65589.3 provides sufficient basis at the motion for leave to amend stage for the Court to allow the proposed amended petition to go forward. 

Petitioner’s motion includes a copy of the proposed first amended complaint, specifications by reference to pages and lines of the allegations that are to be added, and a declaration specifying the effect and necessity of the proposed amendment. (Declaration of Peter J. Howell, ¶ 5.) Given the liberal policy in favor of granting leave to amend and that Petitioners satisfied the procedural requirements of California Rules of Court, rule 3.1324, the motion is GRANTED.

III. CONCLUSION 

For the foregoing reasons, Petitioner’s Motion for Leave to Amend is GRANTED. Petitioner’s first amended petition is to be filed and served within ten (10) days of notice of this order.   The Court will entertain argument from the City as to how much time it will need to file its responsive pleading.