Judge Stephen I. Goorvitch, Case Number: 21STCP03121, Date: 2024-07-09 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 21STCP03121, Date: 2024-07-09 Tentative Ruling

Petitioner Wilshire Gayley, LLC (“Petitioner”) intends to build a high-rise project at the northwest corner of Wilshire Boulevard and Gayley Avenue in Westwood. The Los Angeles County Metropolitan Transportation Authority (“Metro”) is expanding the subway system and intends to place a station underneath Wilshire Boulevard and in close proximity to Petitioner’s proposed high-rise. The City will not issue an “early start grading permit” because Metro had not issued a clearance, even though Petitioner alleges that consultation with Metro was not one of the original requirements. Petitioner alleges that Metro will not issue the clearance because Metro did not design the tunnel and station to accommodate the full scope of Petitioner’s project. This petition follows, and Petitioner asserts three causes of action. First, Petitioner seeks a peremptory writ of mandate under Code of Civil Procedure section 1085 requiring the City to obey its ministerial duty to issue a building permit without Metro’s approval. Second, Petitioner seeks a peremptory writ of mandate under section 1085 against Metro requiring Metro to design the station in compliance with its own design criteria and in such a manner as to not impact Petitioner’s property or project. Finally, Petitioner seeks a declaratory judgment as to whether the project is subject to a requirement to consult with Metro. Respondents demur to the third amended petition, which Petitioner opposes. The court overrules the demurrers. Essentially, Respondents ask this court to resolve disputed issues in their favor, rendering verdicts in advance of trial. At heart, the issues raised by the City and Metro cannot be resolved on demurrer and must be resolved at the trial.

In 2010, the City approved a Vesting Tentative Map (“VTM”) and other land use entitlements for Petitioner to build a high-rise project at the northwest corner of Wilshire Boulevard and Gayley Avenue in Westwood (the “Project”). (Third Amended Petition (“TAP”) ¶¶ 2, 25.) According to the petition, the VTM granted Petitioner “vested rights to develop the Project in substantial compliance with the then-existing ordinances, policies, and standards prescribed by law.” (Id. ¶ 26.) “The City’s approvals also allowed the Project to be built with a zero lot line setback from the property line shared with Lot 36.” (Id. ¶ 27.)

In February 2018, Petitioner applied to the Los Angeles Department of Building and Safety (The “LADBS”) for an expedited building permit to enable the construction of the Project. (Id. ¶ 33.) “LADBS issued a Clearance Summary Worksheet that included a checklist of clearances from City departments required in order for LADBS to issue a building permit. The checklist also contained one line item for Metro, stating: ‘Construction within Metro Rail Planning Area (ZI-2410).’” (Id. ¶ 34.) According to the petition, ZI No. 2410 purports to require “that a LADBS plan check engineer consult with and obtain telephonic clearance from Metro prior to issuance of any building permit for a new structure within ‘an identified Metro Rail planning area (five hundred foot radius of future alignments).’” (Id. ¶ 35, Exh. 2.)

At the same time Petitioner was attempting to build its high-rise project, the Metro was attempting to expand the subway system. “In 2012, Metro approved the Purple Line Extension Project, which included a proposed Station under Wilshire Boulevard and station portal structure and entry plaza on Lot 36.” (Id. ¶ 28; see TAP Exh. 1 [aerial map of the Project lot, Lot 36, and the Station entrance].) Then, in June 2018, Metro allegedly made “substantial changes to the Station’s design, including the relocation of the proposed below ground Station entrance structure much closer to the property line between Lot 36 and the WG Property.” (Id. ¶ 40.)

The two projects “collided” in 2020, when Metro informed Petitioner that in order to obtain building permits from the LADBS for the Project, it needed to comply with ZI No. 1117, which was not included on the LADBS’s 2018 Clearance Summary Worksheet. (TAP ¶¶ 10, 34-35, 43-45, 48, & Exh. 3.) According to the petition, ZI No. 1117 requires Petitioner to consult with Metro to ensure that the Project will not impact access to, and operation of, the Purple Line and the adjacent train station. (TAP ¶ 45 & Exh. 3.) Specifically, ZI No. 1117 states:

Consultation with the Los Angeles County Metropolitan Transportation Authority (Metro) is required prior to the issuance of any building permit for projects within 100 feet of Metro-owned Rail or Bus Rapid Transit (BRT) right-of-way (ROW) that meet the below criteria. Metro must review applicable projects to ensure safe access to, and operations of, transportation services and facilities.

In March 2021, Petitioner applied to City for an early start grading permit. (Id. ¶ 57.) “However, because Metro had not issued a clearance, the LADBS would not issue a permit.” (Ibid.) On October 22, 2021, the LADBS issued a Plan Check Correction Sheet requiring Petitioner to do the following before City would issue any permits for the Project:

1. Get an addendum letter to the soils report to include the underground tunnel/station’s effect and mitigation for the design of the highrise building with the approval of the the LADBS Grading Division.

2. Update the structural design of the highrise building to include the effect of the underground tunnel/station with the approval of the Peer Review Panel, and meet the requirements of the Los Angeles county [sic] Metropolitan Transportation Authority (MTA).

3. Update the site plan and building sections in the architectural plans to show the exact location of the MTA tunnel and station.

In late 2021, Petitioner and Metro entered into an agreement for a third-party engineer, GeoPentech, to analyze the structural interaction of the two projects in their permanent condition. (Id. ¶¶ 84.) In a July 2022, letter, GeoPentech opined: “We consider additional static and seismic impacts on the [Project’s] Tower due to the Station to be negligible assuming that the Station design accommodates additional demands imposed on it by the Tower under static and seismic conditions.” (Id. ¶ 86 [bold italics in TAP].) In a report issued on September 2, 2022, GeoPentech opined that “Metro’s design of its tunnel and Station did not take into account the Project’s tower and instead only considered a general uniform 1000 psf surface load to represent a potential future development at the Project site.” (Id. ¶ 85.)

On September 6, 2022, the Los Angeles City Council (the “City Council”) unanimously adopted a motion introduced by then-City Councilmember for Council District 5, Paul Koretz, to resolve this issue. (Id. ¶ 60.)[1] Petitioner alleges that the City Council ordered the LADBS to “remove the requirement that Metro issue clearances for the Wilshire Gayley project’s construction permits” and “refrain from imposing any additional permitting requirements on the Wilshire Gayley project related to the presence of the Metro station adjacent to the Wilshire Gayley property.” (Id. ¶ 60.) Petitioner alleges that the LADBS has failed to comply with the dictates of the motion. (Ibid.) Among other things, one day later, on September 7, 2022, the City asked Petitioner to submit an “addendum” to the soil report. (See TAP Exh. 18.)

Based upon the foregoing, Petitioner asserts three causes of action: (1) Peremptory writ of mandate under Code of Civil Procedure section 1085 against the City; (2) Peremptory writ of mandate under Code of Civil Procedure section 1085 against Metro; and (3) Declaratory relief under Code of Civil Procedure section 1060 against Respondents. In the first cause of action, Petitioner alleges that the Project is subject to the Building Code, as modified by provisions in Chapter IX of the Los Angeles Municipal Code (the “LAMC”), that were in effect as of December 16, 2019. Petitioner alleges that the pertinent building regulations do not include the clearance process with Metro set forth in ZI No. 1117, and that the LADBS has a ministerial duty to issue the Project’s building permits without regard to ZI No. 1117 and “without first obtaining Metro’s approval.” (Id. ¶¶ 109-113.)

In the second cause of action, Petitioner alleges that Metro failed to account for the Project in its design of its support of excavation plans and in its permanent design of the Station, in violation of Metro’s duty to do so as set forth in Metro Rail Design Criteria. (Id. ¶¶ 114-137.) Petitioner seeks a writ requiring Metro to “comply with the Metro Design Criteria by ensuring that (a) the Station and related structures are designed to withdrawn the loading from the Project, including its static and dynamic pressures; (b) Metro’s temporary works for support of excavation are designed so as not to exert loads on the WG Property; and (c) the design of the station does not impact the construction and operation of the Project.” (Id. at 34, ¶ 2.)

Finally, the third cause of action seeks declaratory relief. Petitioner alleges that “[a]n actual, present controversy exists between WG on the one hand and Metro and the City on the other, specifically as to whether the Project is subject to ZI No. 1117 in the permitting process….” (Id. ¶ 115.)

The court grants Petitioner’s request for judicial notice of Exhibits One through Eleven, though the court did not necessary rely on every exhibit in ruling on the demurrers. Metro argues that the court may take judicial notice of the “existence” but not the “contents” of Exhibits Ten and Eleven. In fact, the court can take judicial notice of the existence of the contents of such documents, but not their truth. (See Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368 fn. 1.) Therefore, Metro’s objections are overruled.[2]

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 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.) “A motion for judgment on the pleadings performs the same function as a general demurrer.” (Burnett v. Chimney Sweep (2004) 123 Cal. App. 4th 1057, 1064.)

Petitioner seeks a writ of mandate and declaration that ZI No. 1117 does not govern the approval process and that “the City cannot apply ZI No. 1117 to Petitioner’s building permit application.” (Oppo. 16:16-17.) Specifically, Petitioner seeks:

A declaration that ZI No. 1117 does not apply to or have any legal effect on the project; that Metro does not have the right to impose requirements on the Project through ZI No. 1117; that the City cannot condition issuance of a building permit on the requirement that WG assess whether Metro’s Station will impact the Project and whether design changes need to be made to the Project to account for Metro’s Station; and that Metro cannot interfere with the WG permitting process with the City or otherwise prevent WG from pulling permits in the ordinary course, including, but not limited to, the main building permit and early start permits for excavation and shoring.

(TAP Prayer ¶ 3.) In other words, this action challenges the legal effect of ZI No. 1117, specifically the City’s refusal to issue the permit without Metro’s approval. The City demurs to the first cause of action, arguing that “the City is explicitly authorized by the Subdivision Map Act to condition the issuance of permits on assurances that the Project will not endanger the health and safety of City residents.” (City Dem. at 6:23-25.) The City further argues:

LADBS has conditioned approval for WG’s projects on consultation with Metro, the provision of requested geotechnical studies, or some other method of establishing that the project can be safely constructed. LADBS is explicitly statutorily authorized to do so by Government Code section 66498.1(c).

(Id. at 7:26-8:1.) In other words, the City argues that its requirements, as reflected in ZI No. 1117, are authorized under Government Code section 66498.1.

Government Code section 66498.1 states: “[T]he local agency may condition or deny a permit, approval, extension, or entitlement if it determines [that] . . . [a] failure to do so would place the residents of the subdivision or the immediate community, or both, in a condition dangerous to their health or safety, or both.” (Gov. Code § 66498.1(c)(1).) This section authorizes a local agency to “apply policies and standards which were not in effect before a vesting tentative map application was deemed complete if the condition promotes the health and safety of the local agency’s residents.” (Bright Development v. City of Tracy (1993) 20 Cal.App.4th 783, 799.)

Petitioner does not challenge the City’s authority to impose conditions or deny the Project permits under section 66489.1(c)(1). Rather, Petitioner alleges that “the City is required to follow the building regulations that applied as of December 16, 2019, when the City’s plan check application was complete” and that “[t]his does not conclude the clearance process with Metro set forth in ZI No. 1117.” (TAP ¶ 109.) In other words, Petitioner alleges that “[b]ecause the ZI No. 1117 Metro clearance process is not included in Chapter IX of the Municipal Code, it cannot be used as a basis to refuse to issue or delay the Project’s permits.” (TAP ¶ 111.)

More important, in order to condition or deny a permit pursuant to section 66489.1(c)(1), the local agency must make an express finding or “determination” that such action is necessary to promote the health and/or safety of the local agency’s residents. (See Bright Development, supra, 20 Cal.App.4th at 799-800 [“There is nothing in the record which suggests that at any time during the administrative process City made the requisite health and safety finding.”].) Because the City raises section 66489.1(c)(1) as a defense, Petitioner was not required to allege that the City failed to make the necessary health and safety findings. (See ibid.) The City does not show, by reference to the TAP or judicially noticeable record, that the City has made the necessary findings to impose any conditions on the Project permits pursuant to section 66489.1(c)(1). Tellingly, the City does not respond to this issue in its reply brief. (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].) Simply, the City asks the court to dismiss this case, arguing that it had authority to proceed under Government Code section 66489(c)(1), without providing proof that it complied with the prerequisites of that section. Therefore, the court overrules the demurrer on this basis without prejudice to raising this issue during the merits phase of the case.

Similarly, Petitioner challenges the City’s authority to require an addendum to the soils report. The City argues that “the Soils Report Review Letter is entirely separate from the ZI No. 1117 consulting procedure which the TAP challenges.” (City Dem. at 9:15-16.) The City argues that it has authority to require a Soils Report under Los Angeles Building Code section 7006.2. The City relies on the authority of Los Angeles Municipal Code section 98.0403.1(a)(1), which states the LADBS “is granted the power to enforce all ordinances and laws relating to the construction . . . of buildings or structures in the City.” (Id. at 8:17-19.)

Again, the City is not addressing the dispositive issue, viz., whether the City has a ministerial duty to process Petitioner’s permit application. Petitioner alleges that the City already reviewed Petitioner’s soils report and issued Soils Report Approval Letters on March 17, 2020, and December 4, 2020. (See RJN, Exhs. 6 & 7.) Petitioner alleges that the LADBS plan checker confirmed that the plan check process had been completed and that the plans were ready to be stamped on October 13, 2021. (TAP ¶ 58.) Then, according to Petitioner, the City rescinded its approval and demanded that Petitioner amended its soils report to include the effect of the station on the project. (TAP ¶ 59.) In response, Petitioner alleges that the City Council adopted a motion prohibiting LADBS from imposing further permitting requirements on the Project relating to the presence of the station. (TAP ¶ 60.) Petitioner alleges that the LADBS ignored the motion and issued the Soils Report Review Letter anyway. (TAP Exh. 18.) These allegations are sufficient to state a claim that must be resolved at trial.

The City’s demurrer, which is predicated on section 66489.1(c)(1) and the Soils Report Review Letter, raises various factual issues related to public health and safety and the soils information submitted by Petitioner and requested by City. Such factual questions cannot be resolved at the pleading stage. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 fn. 5.) Simply, these issues must be resolved at trial.

Finally, the City argues that the first and third causes of action are moot because the requested relief would result in no benefit to Petitioner. “California courts will decide only justiciable controversies.’” (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573.) “The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief.” (Id. at 1574.) A petition for writ of mandate may be dismissed as moot if the requested writ will have “no practical benefit to the petitioner.” (County of San Luis Obispo v. Superior Court (Munari) (2001) 90 Cal.App.4th 288, 293.)

The City argues that, at best, Petitioner may obtain a writ prohibiting the City “from consulting with Metro regarding the issuance of permits to the Project,” but even if so:

[T]he project would be ineligible to receive building permits until it complied with all of the requirements outlined in the City’s September 7, 2022, Soils Report Review Letter and established to the City’s satisfaction that the Project can be constructed without harming the health and safety of the residents living within and in the immediate vicinity of the Project.

(City Dem. at 9:27-10:4.) It is not clear that the City is correct. Petitioner sufficiently alleges an actual controversy as to whether “Metro has the right to impose new conditions or requirements on the Project under ZI No. 1117.” (TAP ¶ 115.) Petitioner has also alleged a beneficial interest in a writ prohibiting the City from applying ZI No. 1117 and compelling the City to process Petitioner’s permit application without obtaining Metro’s clearance. Petitioner could gain a practical benefit from the relief requested in the first and third causes of action, even if such relief is narrowly limited to ZI No. 1117. Accordingly, City does not show, at the pleading stage, that the first and third causes of action are moot.

In the second cause of action, Petitioner alleges that Metro failed to account for the Project in its design of its support of excavation plans and in its permanent design of the Station, in violation of Metro’s duty to do so as set forth in Metro Rail Design Criteria (“MRDC”). (TAP ¶¶ 114-137.) Petitioner prays for a writ of mandate “compelling Metro to comply with the Metro Design Criteria by ensuring that (a) the Station and related structures are designed to withstand the loading from the Project, including its static and dynamic pressures; (b) Metro’s temporary works for support of excavation are designed so as not to exert loads on the WG Property; and (c) the design of the Station does not impede construction and operation of the Project.” (TAP Prayer ¶ 2.)

In sustaining Metro’s demurrer to the second amended petition, the court (Beckloff, J.) ruled that the second cause of action did not contain (1) “an allegation of publication or some other reason MTA’s internal policies subject to discretionary updating can serve as the basis for Section 1085 relief,” or (2) an allegation that Metro “has failed to comply with that duty.” (RJN Exh. 9 at 122-123.) At the hearing, Petitioner’s counsel represented that, in 2018, the Metro Board of Directors adopted a policy requiring station design to adhere to the MRDC and that Metro possessed actual surcharge information about the Project prior to Station design, which it was required to take into account. (RJN Exh. 8 at 71, 77.) Based on such representations, Judge Beckloff concluded that Petitioner had a reasonable likelihood of amending the second amended petition to state a cause of action under CCP section 1085 and granted Petitioner leave to amend.

118. …. On January 25, 2018, the Metro Board of Directors adopted the “Systemwide Station Design Standards Policy,” (“Systemwide Design Policy”) to “ensure[] all future Metro Rail and Bust Rapid Transit (BRT) stations follow a consistent, streamlined systemwide design. . . .” (Exhibit 20, at p. 179.) The Systemwide Design Policy mandates that “[s]tation designs shall be in compliance with Metro’s Systemwide Station Design Standards, as set forth in in the Metro Rail Design Criteria (MRDC).” (Id., p. 2.) With respect to contracts for new Metro stations, the policy provides that “[e]ffective as of this date of this policy, all future Metro station design contracts shall require that station designs be consistent with the Systemwide Station Design Standards as contained in the most current MRDC….

122. Metro issued Request for Qualifications/Request for Proposals No. C45161C1152 for the design-build of the Station (the “Station RFP”) on September 15, 2017. WG is informed and believes and based thereon alleges that the Station RFP included the Metro Design Criteria as a requirement for Station design.

123. To that end, a document titled “Contract C1152 – Stations and Systems, General Requirements (Division 1),” dated February 28, 2019—prior to the awarding of the Station contract—makes it clear that the Station design-build was to adhere to the Metro Design Criteria.

(TAP ¶¶ 118-123.) Petitioner also alleges that “[u]nder the ‘Systemwide Station Design Standards Policy,’ Metro must undertake a formal amendment process to make any changes to the Metro Design Criteria and publish those changes to relevant design and engineering teams.” (Id. ¶ 116, fn. 7.)

These allegations are sufficient plead that Metro owes a ministerial duty to comply with the MRDC in its design of the Station. “[A] ‘published procedure’ adopted by a public entity which provides that the public entity will do a certain thing … can provide the basis for a ministerial duty that may be enforced by means of a writ of mandate.” (Galzinski v. Somers (2016) 2 Cal.App.5th 1164, 1172-1173; see also Pozar v. Dept. of Transp. (1983) 145 Cal.App.3d 269, 271 [writ of mandate issued directing agency to follow procedures in its contract bid forms].)

Metro contends that the MRDC “dictates” only the design obligations of Metro’s contractors, not Metro. Relatedly, Metro contends that it does not have a ministerial duty to comply with the MRDC because it is “not available” on Metro’s website and that Metro could theoretically amend the policy. (Metro Dem. 3-4 and Reply 2.) These arguments are not persuasive at the pleading stage. The TAP alleges that Metro’s Board adopted a policy mandating that Metro’s transit projects, including the Station, are designed consistent with the MRDC. (See TAP Exh. 20.) Petitioner further alleges that Metro must undertake a “formal amendment process” to make changes to the MRDC. (Id. ¶ 116, fn. 7.) These allegations are sufficient to plead that Metro has adopted a formal policy with which it must comply. Neither Galzinski nor Pozar requires that an internal agency rule be posted on the agency’s website for the agency to have a ministerial duty to comply with the rule. Although the Board policy and MRDC could possibly be amended, there are no allegations in the TAP or judicially noticeable record suggesting that Metro has undertaken the “formal amendment process.” Accordingly, Petitioner has sufficiently alleged that, at this time, Metro has a ministerial duty to comply with the MRDC.

Metro next contends that “[t]he allegations in the [third amended petition] about how Metro’s Station design did or did not comply with the MRDC are identical to those the court found deficient when ruling on Metro’s demurrer to the [second amended petition].” (Metro Dem. 4:22-24.) The court disagrees. As in the second amended petition, the third amended petition alleges that section 5 of the MRDC requires Metro projects to follow several design rules, including the following:

A minimum [earth] surcharge load of 400 psf shall be used in the design of tunnels and underground structures. If there is a potential for future development adjacent to the tunnels and underground structures, the surcharge from the actual development shall be used in the design of the structure. In lieu of a well defined loading, a minimum value of 1000 psf shall be used when future development is a possibility.

Tunnel “liners shall be designed to sustain all the loads to which they will be subjected with adequate factors of safety. Such loads shall include: . . . Surcharge loads due to adjacent buildings.”

(TAP ¶ 127 [bold italics in TAP].) However, the third amended petition was amended to allege the following:

131. Metro possessed actual surcharge information about the Project since receiving the Leighton Surcharge Report in September 2020, which was provided during the precise period of time during which the Station design was scheduled to undergo seismic analysis and analysis of adjacent existing structures.

132. Metro received additional information about the Project’s surcharge and bearing pressures between October 2020 and March 2021, at which time the Station design was still in early stages.

133. Yet Metro has never accounted for the Project in its design of the Station.

(TAP ¶¶ 131-133.) The third amended petition also alleges that, in a report issued on September 2, 2022, GeoPentech opined that “Metro’s design of its tunnel and Station did not take into account the Project’s tower and instead only considered a general uniform 1000 psf surface load to represent a potential future development at the Project site.” (Id. ¶ 85.)

These allegations are sufficient to plead that Metro did not comply with the MRDC in its design of the Station and that it has a ministerial duty to do so. The court has considered Metro’s arguments and finds them unpersuasive at the pleading stage. Metro has sufficient notice of Petitioner’s claim. With respect to the MRDC policies quoted above, Metro raises fact questions concerning its compliance with such policies that cannot be resolved on a demurrer.

Based upon the following, the court need not resolve Petitioner’s argument that the demurrers are barred by Code of Civil Procedure section 430.41(b). The court orders as follows:

4. Trial in this matter shall be held on ______, ____ at 9:30 a.m. Petitioner may file one opening brief of 25 pages or less at least 60 days before trial. Each respondent may file an opposition brief of 15 pages or less at least 30 days before trial. Petitioner may file one reply brief of 15 pages or less at least 15 days before trial.

5. Petitioner’s counsel shall provide notice and file proof of service with the court.

[1] Although Petitioner alleges that the motion “unanimously adopted,” Petitioner does not allege that the City Council ordered the LADBS to approve the Project.

[2] The court’s ruling on Metro’s demurrer does not depend on Request for Judicial Notice, Exhibits Ten and Eleven, as Petitioner included sufficient allegations in the body of the third amended petition.