Judge: Stephen I. Goorvitch, Case: 23STCP02886, Date: 2024-08-19 Tentative Ruling

Case Number: 23STCP02886    Hearing Date: August 19, 2024    Dept: 82

Conjunction Junction LLC                                     Case No. 23STCP02886

 

v.                                                                     Hearing: August 16, 2024

                                                                        Location: Stanley Mosk Courthouse

                                                                                    Department: 82                                       The City of Rancho Palos Verdes, et al.                      Judge: Stephen I. Goorvitch

                       

                       

[Tentative] Order Sustaining Demurrer and Denying Motion to Strike

 

 

INTRODUCTION  

 

Conjunction Junction LLC (“Petitioner”) filed this action against the City of Rancho Palos Verdes (the “City”) and Amy Seeraty, in her official capacity as Senior Planner for City (“Respondents”).  In the operative first amended petition for writ of mandate and complaint (“FAP”), Petitioner asserts the following causes of action: (1) Writ of mandate, (2) Declaratory relief and injunctive relief, (3) Violation of Title 42, United States Code, section 1983; and (4) “Challenge to Landslide Moratoriums—If Necessary.”  Petitioner alleges that Respondents failed to comply with the “Builder’s Remedy” of the Housing Accountability Act with respect to a development application that Petitioner submitted to City.  (See Gov. Code § 65589.5(d)(5).)  Respondents demur on several grounds and move to strike portions of the FAP.  The court sustains the demurrer to the first, third, and fourth causes of action with leave to amend.  The court sustains the demurrer to the second cause of action without leave to amend.  The court denies the motion to strike as moot. 

 

BACKGROUND

 

            The FAP alleges that Petitioner “submitted a Builder’s Remedy application to the City of Rancho Palos Verdes” and that the City “began creating roadblocks immediately to try to block the project,” including:

 

a. Claiming that Plaintiff cannot build the project due to the private road used to access their property. The private road is actually a non-exclusive reciprocal easement between Plaintiff and its neighbors and provides access to the property.

 

b. Claiming that Plaintiff is required to comply with its zoning regulations for a Landslide Moratorium Exclusion Permit….

 

c. Environmental Review – the project is a 3 unit development. As such, it falls within Government Code Section 65913.4, which provides that the project is ministerial and is exempt from environmental review.

 

d. Neighborhood Compatibility – Use of a neighborhood compatibility review is expressly prohibited under the Builder’s Remedy law.

 

e. Portuguese Bend Community Association – The City informed Plaintiff that it should comply with all of the design standards for the Portuguese Bend Community Association (the local HOA.)….

 

(FAP ¶¶ 46-48.)  The FAP alleges that “[t]hese requirements were imposed in a letter from Defendant Amy Seeraty on July 7, 2023.”  (Id. ¶ 49.)  Further, “[s]ince the filing of this lawsuit, … the City has passed a moratorium on new building permits in the region, including the Petitioner’s property.”  (Id. ¶ 51.)  Petitioner alleges that “[a]t the City Council hearing on this matter, the City Attorney represented to the City that part of the reason to pass the moratorium was to block the pending Builder’s Remedy applications, including Plaintiff’s application.”  (Id. ¶ 52.)

 

            In the first cause of action for writ of mandate, Petitioner contends that “City refuses to process Builder’s Remedy applications without Plaintiff being required to perform actions that fall outside the Builder’s Remedy process.”  (Id. ¶ 65.)  Petitioner prays for a writ of mandate “ordering the City to comply with the Builder’s Remedy law.”  (Id. ¶ 67.) 

 

            In the second cause of action for declaratory relief, Petitioner “requests a declaration that the City’s demand that Builder’s Remedy applications require a Landslide Moratorium Exclusion Permit, Environmental Review, Neighborhood Compatibility Analysis, and compliance with the Portuguese Bend Community Association’s rules and regulations violates the Housing Crisis Act of 2019.”  (Id. ¶ 77.)  Petitioner asserts the third cause of action, which is a violation of Title 42, United States Code, section 1983.  Finally, Petitioner asserts the fourth cause of action, titled “Challenge to Landslide Moratoriums—If Necessary,” which seeks seeks a judicial determination that City’s Landslide Moratorium is invalid. 

 

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.)  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 demurrer tests the pleadings alone and not the evidence or other extrinsic matters.”  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

 

EVIDENTIARY ISSUES

 

Respondents’ request for judicial notice of exhibits A-H is granted.  (See Evid. Code

§ 452(a), (b), (c), and (h).)  However, if the court does not reference an exhibit in this order, the court did not rely on that exhibit in ruling on the demurrer.    

 

            Petitioner’s request for judicial notice of exhibits 1-6 is denied.  First, Petitioner’s counsel did not comply with California Rules of Court, rule 8.252, which requires that a request for judicial notice be filed as a separate pleading.  Putting that aside, Respondents’ objections to judicial notice are sustained.  Petitioner has not “[f]urnishe[d] the court with sufficient information to enable it to take judicial notice of” Exhibit 1.  (See Evid. Code § 453(b).)  Exhibits 2-6 are not relevant to any material issue in this court’s ruling on the demurrer and motion to strike.  (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135 fn.1 [“matter to be judicially noticed must be relevant to a material issue”].) 

 

DISCUSSION

 

A.              First Cause of Action – Writ of Mandate

 

1.         Applicable Law

 

In the first cause of action, Petitioner seeks a writ of mandate ordering Respondents to comply with the Builder’s Remedy law.  (FAP ¶ 67.)  There are two essential requirements to the issuance of an ordinary writ of mandate: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.)  “An action in ordinary mandamus is proper where … the claim is that an agency has failed to act as required by law.” (Id. at 705.)

 

Government Code section 65589.5(d)(5), known as the “Builder’s Remedy,” is a provision of the Housing Accountability Act (“HAA”) that prevents jurisdictions without a substantially compliant housing element from “disapproving” specific types of housing projects, even if such projects do not comply with the local agency’s zoning ordinance or general plan.  A Builder’s Remedy is only available for a “housing development project,” which is defined in the HAA as “a use consisting of any of the following: (A) Residential units only. (B) Mixed-use developments consisting of residential and nonresidential uses with at least two-thirds of the square footage designated for residential use.  (C) Transitional housing or supportive housing.”  (Gov. Code § 65589.5(h)(2).) 

 

            2.         Petitioner does not allege the project is a “housing development project”

 

Respondents argue that Petitioner has not pleaded sufficient facts to state a claim that Petitioner’s application qualifies as a Builder’s Remedy.  (Demurrer (“Dem.”) 11-13.)  The court agrees.  “[T]he complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary facts.”  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  However, “the limited and statutory nature of governmental liability mandates that claims against public entities be specifically pleaded.”  (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439.)  Here, the FAP includes a single sentence stating that Petitioner submitted a Builder’s Remedy application to the City. (FAP ¶ 60.)  Petitioner does not plead any factual allegations regarding the application or underlying project, and Petitioner has not attached the application as an exhibit.  Accordingly, Petitioner has not alleged, with particularity, that its application pertained to a “housing development project” within the meaning of the HAA.  (Gov. Code § 65589.5(h)(2).)  Notably, Petitioner does not respond to this argument in opposition.  (See Oppo. 2-4; 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”].)

 

There is a genuine question whether Petitioner can satisfy this requirement.  Respondents contend that Petitioner’s project does not qualify as a “housing development project” as a matter of law because “only 13,032 of the entire 161,193 square foot development plan is meant for residential use.”  (Demurrer 13.)  Respondents rely on a preliminary application submitted by Petitioner to City on April 27, 2023.  (Resp. RJN Exh. G.)  Petitioner does not address this argument in its opposition.  Nevertheless, the court will grant leave to amend.

 

            3.         Petitioner does not allege a violation of the Housing Element Law    

 

Respondents argue that Petitioner has not alleged, with particularity, how the City’s housing element fails to substantially comply with the Housing Element Law.  (Dem. 14.)  Under the Builder’s Remedy, a city must approve a housing development project, as defined in the HAA, if it does not have a “substantially compliant” housing element. (Govt. Code §65589.5(d)(1).)  Petitioner alleges that “HCD maintains a database of which municipalities within the State of California have been approved as compliant” and that “[a]s of August 1, 2023, according to the HCD’s Housing Element Compliant Report, the City of Rancho Palos Verdes is ‘Out of Compliance.’”  (FAP ¶¶ 35-36.)  These allegations are insufficient to state a cause of action.  Petitioner does not include any specific allegations as to how the City’s housing element fails to substantially comply with state law.  The trial and appellate courts “independently ascertain as a question of law whether the housing element at issue substantially complies with the requirements of the Housing Element Law.”  (Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1191; accord Martinez v. City of Clovis (2023) 90 Cal.App.5th 193, 237.)  Thus, a determination by HCD that a municipality is “out of compliance” may not be dispositive.  Finally, Petitioner does not allege when it submitted its application to City.  For all these reasons, it cannot be determined from the FAP whether Petitioner submitted its application at a time when City’s housing element was out of compliance with state law. 

 

            4.         The first cause of action is not ripe

 

Finally, Respondents argue that Petitioner’s first cause of action “is premature because the City has not issued a final decision on Petitioner’s application as it is still under administrative review.”  (Dem. 14-16.)  To state a claim under the HAA and to invoke the Builder’s Remedy, Petitioner must show that City “disapprove[d] a housing development project.” (Gov. Code § 65589.5(d).)  Section 65589.5(h)(6) of the HAA states, in relevant part, that “‘disapprove the housing development project’ includes any instance in which a local agency”: (1) “Votes on a proposed housing development project application and the application is disapproved, including any required land use approvals or entitlements necessary for the issuance of a building permit”; (2) fails to comply with the time periods and limits in the Permit Streamlining Act (“PSA”); or (3) “Fails to make a determination of whether the project is exempt from the California Environmental Quality Act …, or commits an abuse of discretion” if certain conditions are satisfied.  (See § 65589.5(h)(6)(A)-(D).)

 

Relatedly, exhaustion of administrative remedies is “a jurisdictional prerequisite to judicial review.”  (Cal. 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.”  (Edgren, supra, 158 Cal.App.3d at 520 [citations omitted].) 

 

Here, the FAP does not allege that City failed to comply with time limits in the PSA or that a “disapproval” under section 65589.5(h)(6)(D) occurred in connection with City’s CEQA review and all of the stated conditions are satisfied.  Thus, the petition must allege that City “[v]ote[d] on a proposed housing development project application and the application is disapproved, including any required land use approvals or entitlements necessary for the issuance of a building permit.”  (§ 65589.5(h)(6)(A).)  The petition only alleges that Respondent Amy Seeraty, a Senior Planner for City, issued a letter on July 7, 2023, specifying that the application was incomplete for various reasons.  (FAP ¶¶ 48-49; see also Resp. RJN Exh. H.)  Petitioner does not allege that City, through its City Council or other decision-making body, has “voted on” and made any final determination to disapprove the application on the grounds it is incomplete or for other reasons.  (See generally Govt Code § 65943(c).)  To the contrary, Petitioner admits that “no final decision has been made on the project itself.”  (Oppo. 10:21-22.)  Accordingly, Petitioner has not alleged either a disapproval of the application under the HAA or that it has exhausted its administrative remedies.  Petitioner also does not allege an excuse from the exhaustion requirement. 

 

Petitioner attempts to circumvent these requirements, arguing that his writ challenges “what requirements must be fulfilled to move forward with the project.”  (Oppo. 10:22-23.)  But the law on the Builder’s Remedy is clear: There must be a disapproval.  Seeraty’s letter does not constitute a disapproval.  The letter merely requests additional information in order to deem the application “complete” and begin “processing.”  If Petitioner believes so strongly that its application should be granted without the additional requirements, Petitioner’s counsel could submit the formal application without the additional materials and demand that the City process the application.  If the City refuses to process the application and render a decision on the merits, then Petitioner could seek a writ requiring the City to do so.  This is different than a writ requiring the City to issue a permit, and Petitioner does not seek this relief in the FAP. 

 

            5.         Summary

 

Based upon the foregoing, the court sustains the demurrer to the first cause of action on these grounds.  The court grants leave to amend. 

 

B.              Second Cause of Action – Declaratory and Injunctive Relief 

 

The second cause of action for declaratory relief is derivative of the first cause of action and suffers the same defects analyzed above.  Further, “it is settled that declaratory relief is not an appropriate method for judicial review of administrative decisions.”  (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 126-127.)  In addition, “[i]njunctive relief is a remedy, not a cause of action.  A cause of action must exist before a court may grant a request for injunctive relief.”  (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 734.)  Accordingly, the demurrer to the second cause of action is sustained.  The court denies leave to amend. 

 

C.              Third Cause of Action – Violation of 42 U.S.C. Section 1983 

 

Pursuant to the local rules, which designate Department 82 as a specialized writs and receivers department and not a general civil department, only a cause of action for writ of mandate is properly assigned to this department.  (LASC Local Rules 2.8(d) and 2.9.)  In the third cause of action, Petitioner alleges that Respondents deprived Petitioner of rights protected by the Constitution and laws of the United States.  (FAP ¶¶ 78-84.)  Petitioner does not seek a writ of mandate in connection with the third cause of action.  Instead, Petitioner appears to seek damages.  (See FAP Prayer ¶ 4.) 

 

Generally, when a non-writ cause of action is pleaded in a petition for writ of mandate, this court will stay the non-writ cause of action pending resolution of the writ cause of action.  Then, after a decision on the writ, the court may transfer the non-writ cause of action to Department 1 for assignment to a general civil department. 

 

In this case, however, the third cause of action appears entirely derivative of the first cause of action for writ of mandate.  Thus, in the interests of judicial economy, the court exercises its discretion to rule on the demurrer to the third cause of action.  Petitioner alleges that “Defendants acted pursuant to a policy or custom of Defendant City of Rancho Palos Verdes of refusing to accept or process Builder’s Remedy applications in violation of State and Federal law.”  (FAP ¶ 82.)  To allege a section 1983 claim, Petitioner must allege that it was “deprived of a constitutionally protected property interest.”  (Gerhart v. Lake County, Mont. (9th Cir. 2011) 637 F.3d 1013, 1019.)  For the reasons discussed above as to the first cause of action, Petitioner does not allege that City has rendered a final decision on the development application and that Petitioner has been deprived of any property interests.  Accordingly, the demurrer to the third cause of action is sustained with leave to amend.    

 

D.              Fourth Cause of Action – Challenge to Landslide Moratoriums – If Necessary

 

In the fourth cause of action, Petitioner alleges: “Plaintiff believes that a Builder’s Remedy project does not need to comply with the Landslide Moratorium municipal code sections as they are Zoning Codes, and thus are overruled by the Builder’s Remedy…. However, if Plaintiff is forced to comply with the Landslide Moratorium, Plaintiff also asserts that the Moratorium itself is invalid.”  (FAP ¶¶ 86-87.)  Petitioner alleges that the Moratorium is “invalid” because of the following:

 

After [a slow-moving] landslide occurred, the City enacted a “one size fits all” solution on the region.  They passed a series of development moratoriums on the region, including the subject property…..  [On remand from Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263], City therefore carved out a small portion of Portuguese Bend now known as the “Monks Parcels” where development is allowed, but retained the moratorium for all of the other owners in the region. These parcels are not wholly contiguous, but instead are scattered throughout the area.  This places the other owners in the moratorium, including Plaintiff, in the same position that the Monks plaintiffs were at the beginning of their process.  The City has now engaged in “spot zoning” to allow development amongst a small group of parcels, with the only appreciable difference between the Monks parcels and the non-Monks parcels being that the owners of the Monks parcels sued to be allowed to develop and won. 

 

(FAP ¶¶ 90, 98-103 [internal paragraph numbers omitted].)  Petitioner further alleges: “City has not submitted the moratorium to the HCD for approval, nor has the moratorium been approved. Therefore, under Government Code Section 66300 the moratorium is void.”  (Id. ¶ 104.)

 

            The first amended petition cites no legal predicate or authority for the fourth cause of action.  The court cannot determine whether the fourth cause of action seeks a writ of mandate under Code of Civil Procedure section 1085 and/or 1094.5; whether the fourth cause of action raises a constitutional challenge; or whether the fourth cause of action asserts a right under some other law.  Based upon the allegations, it appears that Petitioner is attempting to circumvent the ripeness issue that precludes him for proceeding on the first cause of action.  Petitioner’s counsel articulates a variety of theories in his opposition.  The legal and factual basis for this claim must be clear in the operative petition itself.  Therefore, the court sustains the demurrer to the fourth cause of action with leave to amend.   

 

CONCLUSION AND ORDER

 

            Based upon the foregoing, the court orders as follows:

 

            1.         The court sustains the demurrer to the first, third, and fourth causes of action with leave to amend. 

 

            2.         The court sustains the demurrer to the second cause of action without leave to amend.

 

            3.         Petitioner’s counsel may file a second amended petition within 30 days.

 

            4.         The court continues the trial setting conference to November 20, 2024, at 9:30 a.m. 

 

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

 

 

IT IS SO ORDERED. 

 

 

Dated: August 19, 2024                     

                                                                                    ______________________

                                                                                    Stephen I. Goorvitch

                                                                                    Superior Court Judge