Judge: Stephen I. Goorvitch, Case: 23STCP00671, Date: 2024-05-08 Tentative Ruling
Case Number: 23STCP00671 Hearing Date: May 8, 2024 Dept: 82
Catalyst-Artesia, LLC Case No. 23STCP00671
v.
Hearing
Date: May 8, 2024
Department:
Stanley Mosk #82
City
of Artesia Judge: Stephen I. Goorvitch
[Tentative] Order Overruling
Demurrer to Petition for Writ of Mandate
Respondent
City of Artesia (“Respondent” or “City”) demurs to the first amended petition (“FAP”)
filed by Petitioner Catalyst-Artesia, LLC (“Petitioner”) for failure to state a
cause of action and for uncertainty. For
the reasons discussed below, the FAP states a cause of action for mandate. Accordingly, the demurrer is overruled.
SUMMARY OF PETITION
As
relevant to this demurrer, the FAP alleges the following:
On October 10, 2022, the Artesia
City Council passed, approved, and adopted City Ordinance No. 22-929 for the
zoning of cannabis businesses within the City.
(FAP ¶ 15.)
Pursuant to Artesia Municipal Code
(“AMC”) section 3-2.802(a)(3)(ii), “an Applicant must obtain a Zoning
Verification Letter [‘ZVL’] from the Community Development Department” in order
to submit a complete Permit application.
(Id. ¶ 18.)
Petitioner submitted a request for a
ZVL for 16604 Pioneer Boulevard, Artesia, CA 90701 (the “Property”). (Id. ¶¶ 3, 19.)
“On February 22, 2023, the City
denied Petitioner’s ZVL request, indicating that, although the Property is
within the City’s Commercial General zone and not within 600 feet of any
sensitive uses, the Property is located ‘north of the 91 freeway, which is not
an authorized zone for Cannabis Retail use.’”
(Id. ¶ 20.)
In March 2023, Petitioner filed its
original petition asserting that City had a ministerial duty to issue
Petitioner a ZVL for the Property. (Id.
¶ 4.) Thereafter, City obtained a stay
of this action and, in or around June 2023, “City purported to amend Ordinance
No. 22-929, and specifically amended AMC §9-2.4402(A), to expressly prohibit
cannabis uses north of the 91 freeway, thereby purportedly rendering Catalyst’s
previously submitted and legally compliant application non-compliant.” (Id. ¶ 5.)
Petitioner filed an administrative
appeal of City’s denial of its ZVL application and an administrative hearing
was held on October 10, 2023. (Id. ¶ 7.) On October 26, 2023, the Hearing Officer
issued his “Administrative Hearing Decision and Order” (hereafter
“Decision”). (Id. and Exh. 1.)
According to the FAP, “the Hearing
Officer made several findings that Catalyst challenges herein via
administrative mandamus.” (Id. ¶
7.) Specifically, as summarized in the
FAP, the Hearing Officer concluded that City properly denied Petitioner’s ZVL
based on the language of Ordinance No. 22-929 before it was
amended in June 2023. Because the
Hearing Officer concluded that the denial was proper based on the prior version
of Ordinance No. 22-929, the Hearing Officer found that there was “no
retroactive application of the amended ordinance” to Petitioner’s
application. (Id. ¶ 7 and Exh. 1.)
In the FAP, Petitioner includes a
single cause of action for writ of mandate pursuant to CCP sections 1085 and
1094.5. Petitioner seeks, among other
relief, “a
writ: (1) ordering the City to issue an approved ZVL to Petitioner; [and] (2)
ordering the City to process Petitioner’s application.” (Id. ¶ 38.)
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 (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.)
DISCUSSION
Petitioner States
a Cause of Action for Writ of Mandate
Respondent
contends that the petition does not plead a cause of action for administrative
mandate because Petitioner does not seek “reversal” of the Decision and “the only relief
being sought is a reconsideration of Petitioner’s application for a
Permit.” (Dem. 11-12.) Respondent also contends that Petitioner
has not pleaded a cause of action for ordinary mandate because, under the
City’s current cannabis laws, “the City has no present ministerial duty to
issue Petitioner a ZVL, and the Petitioner has no present beneficial right to either
a ZVL or a Permit.” (Dem. 8.)
A petition for
writ of administrative mandate is brought “for the purpose of inquiring into
the validity of any final administrative order or decision made as the result
of a proceeding in which by law a hearing is required to be given, evidence is
required to be taken, and discretion in the determination of facts is vested in
the inferior tribunal, corporation, board, or officer.” (CCP § 1094.5(a).) The pertinent issues are whether the
respondent has proceeded without jurisdiction, whether there was a fair trial,
and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the
agency has not proceeded in the manner required by law, the decision is not
supported by the findings, or the findings are not supported by the
evidence. (CCP § 1094.5(b).)
In an
administrative mandate proceeding, “a trial court must afford a strong
presumption of correctness concerning the administrative findings….” (Fukuda
v. City of Angels (1999) 20 Cal. 4th 805, 817.) In general,
“a hearing on a writ of administrative mandamus is conducted solely on the
record of the proceedings before the administrative agency.” (Toyota of Visalia, Inc. v. New Motor Vehicle
Bd. (1987) 188 Cal.App.3d 872, 881; CCP § 1094.5(e).)
Here, Petitioner
has alleged all elements of a petition for writ of administrative mandate. Specifically, Petitioner alleges that it had
a right to administratively appeal the denial of its ZVL application pursuant
to Ordinance No. 22-930; that Petitioner filed an administrative appeal and a
hearing was held before a hearing officer; and that the hearing officer issued the
Decision denying Petitioner’s appeal.
(FAP ¶ 7.)
Contrary to
Respondent’s arguments, Petitioner challenges the Decision under CCP section
1094.5. Petitioner states that “the
Hearing Officer made several findings that Catalyst challenges herein via
administrative mandamus”; identifies those findings; and then explains in
detail why Petitioner contends that the Hearing Officer abused his discretion. (FAP ¶¶ 7, 35-36.) Petitioner specifically alleges: “The Hearing
Officer’s Decision is legally erroneous, advances an interpretation and
application of Section 9-2.4402 that contravenes well-settled and mandatory
rules of statutory construction, purports to make findings of legislative
intent for which no evidence was submitted and which was not even raised or
argued by the City, and is based on interpretation of a Recital contained in
the original Ordinance that was identified and raised for the first time in the
Decision itself. Thus, the Decision constitutes an abuse of discretion under
CCP Section 1094.5, the findings therein are not supported by the evidence and
are fatally inconsistent with mandatory legal rules of statutory construction.” (Id. ¶ 25; see also Id. ¶¶ 35-36.)
That Petitioner
did not specifically pray for “reversal” of the Decision is not determinative. Petitioner seeks affirmative relief to which
it could be entitled if the Decision is set aside, including an order directing
City to process Petitioner’s application.
(FAP ¶ 38.) Moreover, a “plaintiff
need only plead facts showing that he may be entitled to some relief,” and “a
prayer for relief is not subject to demurrer.” (Gruenberg v. Aetna Ins. Co. (1973) 9
Cal. 3d 566, 572; Ramsden v. Western Union (1977) 71 Cal. App. 3d 873,
883.)
In reply,
Respondent acknowledges that Petitioner may seek administrative mandate on the
grounds that the Hearing Officer abused his discretion. (Reply 4:11-15.) According to Respondent, “the form of relief
[for an abuse of discretion] would be to reverse [the] decision and potentially
remand to the Agency for a reconsideration of his application.” (Reply 4.)
Respondent asserts that “Petitioner does not seek this relief but
instead seeks an order directing the issuance of a ZVL, which would require the
City to come to a determination contrary to its law.” (Reply 4.)
Respondent does not show any deficiency in the pleading. If the court were to find the Hearing Officer
abused his discretion, it could be appropriate for the court to order the
Decision set aside and order Respondent to reconsider the Decision in light of
the court’s opinion and judgment. (CCP §
1094.5(f).) However, the writ would not
“limit or control in any way the discretion legally vested in the
respondent.” (Ibid.) In any event, questions concerning the scope
of any writ or other remedy that could be issued by the court are premature at
this time.
Although the argument is not fully
developed, Respondent suggests throughout its demurrer that the Hearing Officer
should have found that Petitioner’s application was properly denied based on
the amended versions of City’s cannabis laws, which were adopted in June 2023
and after City had denied Petitioner’s application. The FAP alleges that the Hearing Officer based
the Decision on the prior version of the ordinance “despite the fact the City
argued in its appellate briefing and during the hearing that its denial was
based on the amended ordinance language, not the original language.” (FAP ¶ 7 and Exh. 2 at 10-13.) The appellate brief attached as Exhibit 2 to
the FAP shows that Respondent argued, before the Hearing Officer, that Petitioner
did not attain any “vested right” to proceed with its application before City
amended its cannabis laws and that City could apply its amended cannabis laws
retroactively. (Id. Exh. 2 at 10-13.) Respondent has not developed a similar
argument in its demurrer briefing. (Nelson
v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [argument waived if not
raised or adequately briefed].)
In any event, Petitioner
has pleaded the elements of a petition for writ of administrative mandate. The court does not have before it the full
administrative record. The merits of the
Hearing Officer’s ruling on the question of retroactive application of City’s
cannabis laws is appropriately addressed at the trial on the writ petition, not
on a demurrer. Respondent is not
precluded from developing such arguments in its briefing for the writ
trial.
Within the first
cause of action in the FAP, Petitioner seeks a writ of mandate pursuant to CCP
section 1094.5, or, alternatively, section 1085. Petitioner seeks writ relief on the same
grounds under both section 1094.5 and section 1085: Petitioner’s “location was
expressly permitted by Section 9-2.4402(a)” of the cannabis laws in effect when
the application was filed. (FAP ¶ 37.) Accordingly, Petitioner contends that the
Hearing Officer erred in denying Petitioner’s appeal, and the City has a
ministerial duty to process Petitioner’s application. (Ibid.) Thus, the first cause of action pleads a
single cause of action based on alternative legal theories as the basis for
writ relief. “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.) Because Petitioner pleads a cause of action
for administrative mandate, the demurrer to the first cause of action must be
overruled. Further, the court cannot
determine at this stage of the litigation, and before judicial review of the
Decision, whether Petitioner could be entitled to a writ of traditional mandate.
Based on the
foregoing, the demurrer to the first cause of action for writ of mandate is
OVERRULED.
Respondent Has Not
Shown that the FAP is Moot
Respondent contends that the entire
petition is moot because “even if Petitioner were entitled to a ZVL when it
first applied, it is not now so entitled” and because Petitioner did not seek
writ review of the Decision. (Dem.
12-14.)
California courts will decide only justiciable
controversies. [Citations.] The concept of justiciability is a tenet of
common law jurisprudence and embodies ‘[t]he principle that courts will not
entertain an action which is not founded on an actual controversy....’” (Wilson
& Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559,
1573.) “A case is considered moot when
‘the question addressed was at one time a live issue in the case,’ but has been
deprived of life ‘because of events occurring after the judicial process was
initiated.’” (Id. at 1574.) “The
pivotal question in determining if a case is moot is therefore whether the
court can grant the plaintiff any effectual relief.” (Ibid.)
As discussed, Petitioner states a cause of action for administrative
mandate. Accordingly, the court could
grant effectual relief in its review of the Hearing Officer’s Decision pursuant
to CCP section 1094.5 and, if the court grants the petition, issuance of a writ
of administrative mandate.
Respondent also did not address in its demurrer the issues of
retroactive application of the amended cannabis laws that it raised before the
Hearing Officer. (See FAP Exh. 2 at
10-13.) Without briefing, the court
cannot conclude that the petition is moot on the grounds that Respondent applied
its amended cannabis laws retroactively.
For the first time
in the reply brief, in the section on mootness, Respondent discusses various
appellate decisions that were not cited or discussed in the demurrer. (See Reply 4-6, discussing Bruce v.
Gregory (1967) 65 Cal.2d 666, 671; West Coast Advertising Co. v. City
and County of San Francisco (1967) 256 Cal.App.2d 357; Selby Realty Co.
v. City of San Buenaventura (1973) 10 Cal.3d 110, 125; Wheat v. Barrett
(1930) 210 Cal. 193, 197; Lindell Co. v. Board of Permit Appeals of City and
County of San Francisco (1943) 23 Cal.2d 303, 322.) “The
salutary rule is that points raised in a reply brief for the first time will
not be considered unless good cause is shown for the failure to present them
before.” (Balboa Ins. Co. v. Aguirre (1983)
149 Cal.App.3d 1002, 1010.) Respondent
does not show good cause to raise new arguments or legal authorities in
reply. Accordingly, the court rejects these
new reply arguments on that basis. Furthermore,
in these reply arguments, Respondent raises issues concerning the merits of the
Hearing Officer’s decision and the appropriate remedy that should be decided at
the trial on the writ petition and after review of the full administrative
record. Respondent is not precluded from
discussing these authorities in its briefing for the writ petition.
For these reasons, it does not
appear from the face of the FAP that the action is moot. The general demurrer is OVERRULED.
Injunctive Relief
An injunction is a remedy and not a cause of
action. (See Korean American Legal
Advocacy Foundation v. City of Los Angeles (1994) 23 Cal.App.4th 376,
398-399.) Nonetheless, Respondent did
not challenge the second cause of action on that basis. Rather, Respondent asks the court to
adjudicate, on demurrer, whether Petitioner has shown a likelihood of success
and irreparable harm. (Dem. 9-11.) The court confirms that any injunctive relief
would need to be based on the cause of action for mandate. However, the court cannot determine from the
face of the FAP whether any injunctive relief could be granted in this
action. Accordingly, the demurrer is
OVERRULED.
The Petition is
Not Uncertain
Demurrers for
uncertainty are strictly construed, because discovery can be used for
clarification, and apply where defendants cannot reasonably determine what
issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14
Cal.App.4th 612, 616.)
“[U]nder our liberal pleading rules, where the complaint contains
substantive factual allegations sufficiently apprising defendant of the issues
it is being asked to meet, a demurrer for uncertainty should be
overruled.” (Williams v. Beechnut
Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)
As shown by the discussion above, the
FAP includes sufficient allegations apprising Respondent of the nature of
Petitioner’s claim. The demurrer for
uncertainty is OVERRULED.
CONCLUSION
The
general demurrer is OVERRULED in its entirety.
The
demurrer for uncertainty is OVERRULED.
IT IS SO ORDERED.
May 8, 2024 ________________________________
Hon. Stephen I. Goorvitch
Judge of the Superior Court