Judge Stephen I. Goorvitch, Case Number: 23STCP04112, Date: 2024-07-16 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP04112, Date: 2024-07-16 Tentative Ruling

Case Number: 23STCP04112 Hearing Date: July 16, 2024 Dept: 82

Stanford Neighborhood Association, LLC, Case No. 23STCP04112

v. Hearing Date: July 12, 2024

Location: Stanley Mosk Courthouse

City of Los Angeles Department: 82

Judge: Stephen I. Goorvitch

[Tentative] Order Sustaining Demurrer to Verified Petition for Writ of Mandate

[Tentative] Order Denying Motion to Strike as Moot

INTRODUCTION

Petitioner Stanford Neighborhood Association, LLC (“Petitioner”) filed this petition for writ of mandate on behalf of nine property owners/lessees on Stanford Avenue in Los Angeles, California. Petitioner alleges that three properties on the same street are running an unlicensed and illegal concrete grinding operation (the “violative properties”). Petitioner alleges that the City of Los Angeles (“Respondent” or the “City”) issued notices of code violations against the violative properties, which included an order to discontinue their concrete grinding operations. Petitioner alleges that the owners and tenants of the violative properties have not cured the violations and now seeks a writ of mandate requiring the City to “enforce its order to cease operations.”

The court is sympathetic to the plight of the residents because the violative properties allegedly cause contamination throughout the neighborhood from the concrete particulate. However, the court only has authority to require the City to exercise a ministerial duty, which is a duty that must be performed in a “prescribed manner” and without discretion. Petitioner identifies no ministerial duty at issue. To the contrary, “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” (Heckler v. Chaney (1985) 470 U.S. 821, 831.) The City retains discretion whether, when, and how to enforce its orders. Because Petitioner challenges the manner in which the City exercises its discretion in enforcement matters, the court has no authority to issue a writ because doing so would violate the separation of powers doctrine. Instead, Petitioner’s remedy lies with those at the City who have input into enforcement decision. Therefore, the court has no choice but to sustain the demurrer. Because the court sustains the demurrer, the court denies the motion to strike as moot.

PETITIONER’S ALLEGATIONS

Petitioner has been assigned claims from the owners and lessees of nine different properties located on the 6000-block of Stanford Avenue in Los Angeles, California. (Petition for Writ of Mandate (“Pet.”) ¶ 1.) The claims of Petitioner’s assignees relate to a “second group of properties … that are owned and possessed by a group of entities that are running an unlicensed and illegal concrete grinding operation.” (Id. ¶ 9.) Those properties, which Petitioner refers to as the “Violative Properties,” are also located on the 6000-block of Stanford Avenue in Los Angeles, California. (Id. ¶¶ 9-10.)

Petitioner alleges, on information and belief, that “on or about March 3, 2021, [Respondent] issued Notices of Code Violation against the Violative Properties” and that “[i]ncluded in the Notices of Code Violation was an order to ‘[d]iscontinue the use of land for Concrete Recycling without the required Certificate of Occupancy’ due to violations of Los Angeles Municipal Code Sections 12.26E.2 and 12.21A.1(a).” (Id. ¶ 12.) On or about May 4, 2021, after the owners and tenants of the Violative Properties did not cure the alleged code violations, Respondent issued Orders to Comply and Notices of Fees (hereafter “OTCs”). (Id. ¶¶ 14-15.) Petitioner alleges that the owners and tenants of the Violative Properties also did not cure the alleged code violations in response to the OTCs. (Id. ¶ 18.) Petitioner alleges that “the concrete grinding operation has caused contamination from the concrete particulate spreading through the neighborhood.” (Id. ¶ 20.)

Petitioner alleges that “once the City exercised its discretion and issued a noncontingent order to cease all operations, the City’s discretion ended and the duty became a mandatory one.” (Id. ¶ 35.) Petitioner cites no legal authority for this proposition. Petitioner prays for a writ of mandate directing City to enforce the orders it issued with respect to the Violative Properties. (Id. ¶ 37 and Prayer.)

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.)

Upon motion, the court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP § 436.) As with a demurrer, “[t]he grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (CCP § 437.) Courts take a “cautious” approach to motions to strike. “We have no intention of creating a procedural ‘line item veto’ for the civil defendant.” (PH II, Inc. v. Superior Court (1995) 33 Cal. App. 4th 1680, 1683.)

EVIDENTIARY ISSUES

The City requests judicial notice of three sections of the Los Angeles Municipal Code: Exhibit A, which is section 98.0403.1; Exhibit B, which is section 12.26; and Exhibit C, which is section 12.18. The court grants the request, per Evidence Code section 452(b).

DISCUSSION

A. Standing

Respondent argues that Petitioner lacks standing. The court interprets this petition as seeking a writ of mandate under Code of Civil Procedure section 1085. To have standing to seek a writ of mandate, a party must be “beneficially interested.” (Code Civ. Proc. § 1086.) “A petitioner is beneficially interested if he or she has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.” (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal. App. 4th 899, 913; accord Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796-97.) “This standard … is equivalent to the federal ‘injury in fact’ test, which requires a party to prove by a preponderance of the evidence that it has suffered an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” (Associated Builders and Contractors, Inc. v. San Francisco (1999) 21 Cal.4th 352, 361-362, citations and internal quotations omitted.)

“Under the doctrine of associational standing, an association that does not have standing in its own right may nevertheless have standing to bring a lawsuit on behalf of its members. (Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1003-1004.) Associational standing exists when: (a) the association’s members would otherwise have standing to sue in their own right; (b) the interests the association seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. (Ibid., citing Hunt v. Washington Apple Advertising Comm’n (1977) 432 U.S. 333, 343.)

Respondent contends that Petitioner has not alleged an interest in enforcement of the orders to comply (“OTCs”) “over and above” the public’s interest in enforcement. (Amended Demurrer (“Dem.”) 5.) The court disagrees. Petitioner is asserting claims on behalf of owners/lessees of nine properties on the 6000-block of Stanford Avenue. The violative properties are also on the 6000-block of Stanford Avenue. The petition alleges that the concrete grinding operation at the violative properties has caused contamination from the concrete particulate “spreading throughout the neighborhood.” (Pet. ¶ 20.) Because the petition focuses on a specific neighborhood—the 6000 block of Stanford Avenue—the petition sufficient alleges that Petitioner’s assignees have a greater interest than the public at large in the enforcement of the OTCs and abatement of the alleged contamination of the neighborhood. Accordingly, Petitioner has sufficiently alleged standing to seek the requested writ.

B. Exhaustion of Administrative Remedies

Respondent contends that Petitioner has not exhausted administrative remedies under Los Angeles Municipal Code (“LAMC”) sections 98.0403.1 and 12.26 K to “appeal” the alleged failure of the Department of Building and Safety (“LADBS” or “Department”) to enforce the OTCs. (Dem. 6-7.) 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.) “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.” (Ibid., citations omitted.)

LAMC section 98.0403.1(b)(2) states that the Board of Building and Safety Commissioners (“Board”) “shall have the power to hear and determine appeals from orders, interpretations, requirements, determinations, or actions of the Department pertaining to enforcement of specific ordinances, regulations, or laws in site-specific cases.” (RJN Exh. 1.) Further, section 98.0403.1(b)(2) states:

[T]he Board shall have no authority to hear and determine appeals from orders, interpretations, requirements, determinations, or actions of the Department pertaining to enforcement of specific ordinances, regulations, or laws contained in Chapter I of the LAMC and in other land use ordinances. Any appeal concerning these requirements shall be made to the Director of Planning in accordance with the provisions set forth in LAMC Section 12.26 K.

(Ibid.) Under section 12.26 K:

The Director of Planning shall have the power and duty to investigate and make a decision upon appeals from determinations of the Department of Building and Safety where it is alleged there is error or abuse of discretion in any order, interpretation, requirement, determination or action made by the Department of Building and Safety in the enforcement or administration of Chapter I of this Code and other land use ordinances in site-specific cases.

(RJN Exh. 2.)

Here, Petitioner does not challenge any express or affirmative “orders, interpretations, requirements, determinations, or actions” of LADBS. Rather, the petition arises from alleged inaction of Respondent, viz., the failure to enforce the OTCs. Respondent’s counsel argues that in some circumstances, a failure to enforce OTCs could be viewed as an “action” or “determination” of LADBS within the meaning of LAMC sections 98.0403.1(b)(2) and 12.26 K. (See Dem. 6-7 and Reply 4:8-18.) The court is skeptical of this argument, as the plain language of section 12.26 K relates to an “order” or “action” by the Department of Building and Safety, not an “inaction,” and the City has cited no example where such an appeal has been entertained. Regardless, because the demurrer must be sustained on other grounds, the court need not resolve this issue.

C. Mandatory Duty and Separation of Powers

Respondent contends that it does not have a mandatory duty to enforce the OTCs. Respondent further argues that its prosecutorial decisions are not subject to judicial review, and a writ compelling Respondent to enforce the OTCs would violate the separation of powers doctrine. There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (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.)

“Generally, mandamus is available to compel a public agency’s performance or to correct an agency’s abuse of discretion when the action being compelled or corrected is ministerial.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.) “A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists.” (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.) By contrast, the court has no authority to order a public officer to undertake a discretionary act.

Petitioner does not identify any statute or LAMC section that requires the City to take action to enforce the OTCs. Nor does any LAMC section cited in the petition or briefing contain such a requirement. Petitioner alleges that concrete grinding operations are prohibited by LAMC section 12.18(B)(3). (Pet. ¶¶ 24-26.) Section 12.18(B)(3) applies to the “MR2” Restricted Light Industrial Zone and prohibits uses that include “[b]uilding materials salvage yard” unless such uses are “conducted wholly within a completely enclosed building or within an area enclosed on all sides with a solid wall or solid fence not less than eight feet in height, when no materials or equipment is stored to a height greater than that of the enclosing wall or fence … and the wall or fence is maintained as provided in Section 12.21-A,9.” (RJN Exh. C.) Section 12.18(B)(3) does not, in itself, mandate any enforcement action of LADBS or the City.

LAMC section 98.0403.1, subsections (a)(1) and (a)(3), as well as LAMC section 12.26 grant the power to LADBS “to enforce the zoning ordinances of the City,” including section 12.18. (RJN Exh. 1.) This power is discretionary in nature and generally cannot be controlled by mandate. As Petitioner concedes, “[h]ad Petitioner sued to force the City to determine that they should issue an order to cease operations, Petitioner would necessarily lose because such an order is fully within the discretion of the Code Officer.” (Opposition to Demurrer (“Oppo.”) 7:3-5.)

Instead, Petitioner argues that once Respondent issued the OTCs, it had a ministerial duty to enforce them. (Oppo. 6-7.) Essentially, Petitioner argues that once the City decides to issue the OTCs, it loses all prosecutorial discretion over the case. Petitioner cites no case directly on point, and the LAMC sections do not support that argument. To the contrary, the LAMC affords the City discretion to enforce zoning ordinances.

Petitioner relies heavily on Thompson v. City of Lake Elsinore (1993) 18 Cal.App.4th 49, but that case is distinguishable. In Thompson, the plaintiff sought a building permit and certificate of occupancy. The city issued the building permit but not the certificate of occupancy. The pertinent provision of the Uniform Building Code stated that “[a]fter final inspection when it is found that the building or structure complies with the provisions of this Code, the Building Official shall issue a Certificate of Occupancy.” (Thompson, supra, 18 Cal.App.4th at 58, emphasis added.) The city had already determined that the plaintiff met the statutory requirements for issuance of a certificate of occupancy and gave a “Final Inspection Okay.” (Id. at 58.) Accordingly, the Court of Appeal held that “the building official retained no further discretion to withhold the certificate of occupancy” because the regulation stated that the city “shall” issue the certificate of occupancy. (Ibid.) The Thompson case involved a ministerial duty, viz., the issuance of a certificate of occupancy. By contrast, the instant case involves the exercise of prosecutorial discretion. Unlike the Thompson case, there is no municipal code section, city regulation, or statutory law that imposes a ministerial duty on the City under these circumstances.

At heart, Petitioner asks this court to substitute its judgment for that of the City on the issue of whether and how to enforce the zoning ordinances at issue. Such a writ would violate the separation of powers doctrine because the court cannot supplant the prosecutorial discretion of an executive branch agency. As discussed, the City has discretion over how to enforce the zoning ordinances. This precludes a writ.

Th[e] [United States Supreme] Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion. This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.

(Heckler v. Chaney (1985) 470 U.S. 821, 831, citations omitted.) This principle applies in both civil and criminal matters in which an agency or public officer has enforcement discretion. (See People v. Karriker (2007) 149 Cal.App.4th 763, 786; accord People v. Cimarusti (1978) 81 Cal.App.3d 314, 322-323; Riggs v. City of Oxnard (1984) 154 Cal.App.3d 526, 530; Dix v. Sup.Ct. (1991) 53 Cal.3d 442, 451; Schwartz v. Poizner (2010) 187 Cal.App.4th 592, 597–598.) “This discretion, though recognized by statute in California, is founded upon constitutional principles of separation of powers and due process of law.” (Gananian v. Wagstaffe (2011) 199 Cal.App.4th 1532, 1545-1546, citations omitted.)

Petitioner argues that the separation of powers doctrine does not bar the petition because “the discretionary portion of the City’s duties is complete and all that is left is to enforce the order.” (Oppo. 10:6-7.) This argument assumes the City is required to enforce its OTCs once they are issued. As discussed, Petitioner does not identify anything that mandates such action by the City. The City retains discretion in terms of whether, when, and how to enforce its OTCs for valid purposes. For example, the City retains discretion to negotiate resolutions to avoid enforcement actions. Similarly, the City has limited staffing and must prioritize its enforcement actions. These are valid considerations for the City and precisely the reason the courts cannot substitute their discretion for that of the City’s officials.

Petitioner argues that “the failure to utilize [its] discretion is, in and of itself, an abuse of discretion after three years of failing to enforce its order.” (Oppo. at 7:10-11, emphasis omitted.) In certain limited circumstances, mandamus may be utilized to correct abuses of discretion.

In determining whether a public agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency’s action, its determination must be upheld. A court must ask whether the public agency’s action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.

(County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 654.) This does not apply to prosecutorial decisions of a local agency. (See Heckler, supra, 470 U.S. at 831.) Petitioner cites no authority to the contrary. Indeed, a writ of mandate may not be used “to control an exercise of discretion, i.e., to compel an official to exercise discretion in a particular manner.” (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442.) Regardless, the petition does not allege that the City has abused its discretion in failing to enforce the OTCs; the petition alleges only that the City has a ministerial duty to enforce the OTCs. Therefore, the court sustains the demurrer.

CONCLUSION AND ORDER

1. The court sustains the demurrer.

2. The court denies the motion to strike the prayer for declaratory relief as moot.

3. A demurrer may be sustained without leave to amend when there is no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Petitioner’s counsel does not articulate any basis on which he can allege that the City has a ministerial duty to enforce the orders to comply in this case. Therefore, the court denies leave to amend.

4. This signed order shall constitute the judgment in this case.

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

IT IS SO ORDERED.

Dated: July 16, 2024 ________________________________

Stephen I. Goorvitch

Superior Court Judge