Judge Stephen I. Goorvitch, Case Number: 24STCP00386, Date: 2024-08-19 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP00386, Date: 2024-08-19 Tentative Ruling

Case Number: 24STCP00386 Hearing Date: August 19, 2024 Dept: 82

Compton Property Group LLC Case No. 24STCP00386

v. Hearing: August 19, 2024

Location: Stanley Mosk Courthouse

Department: 82 The City of Compton Judge: Stephen I. Goorvitch

[Tentative] Order Granting Motion to Strike Portions of Petition for Writ of Mandate

INTRODUCTION

Compton Property Group LLC (“Petitioner”) filed this petition for writ of mandate alleging that the housing element of City of Compton (“Respondent” or “City”) does not substantially comply with state law. Respondent now moves to strike certain prayers for relief in the petition, specifically, paragraphs 3, 4(b), and 4(c), on the grounds that such prayers are not authorized by statute or other law. Petitioner has not opposed the motion or requested leave to amend. The motion is granted.

LEGAL STANDARD

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. (Code Civ. Proc. § 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.” (Code Civ. Proc. § 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.) “Judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

DISCUSSION

Pursuant to Government Code section 65755, if a court determines that a city’s housing element does not substantially comply with state law, the court may include in its judgment one or more of the following provisions:

(1) Suspend the authority of the city, county, or city and county pursuant to Division 13 (commencing with Section 17910) of the Health and Safety Code, to issue building permits, or any category of building permits, and all other related permits, except that the city, county, or city and county shall continue to function as an enforcement agency for review of permit applications for appropriate codes and standards compliance, prior to the issuance of building permits and other related permits for residential housing for that city, county, or city and county.

(2) Suspend the authority of the city, county, or city and county, pursuant to Chapter 4 (commencing with Section 65800) to grant any and all categories of zoning changes, variances, or both.

(3) Suspend the authority of the city, county, or city and county, pursuant to Division 2 (commencing with Section 66410), to grant subdivision map approvals for any and all categories of subdivision map approvals.

(4) Mandate the approval of all applications for building permits, or other related construction permits, for residential housing where a final subdivision map, parcel map, or plot plan has been approved for the project, where the approval will not impact on the ability of the city, county, or city and county to properly adopt and implement an adequate housing element, and where the permit application conforms to all code requirements and other applicable provisions of law except those zoning laws held to be invalid by the final court order, and changes to the zoning ordinances adopted after such final court order which were enacted for the purpose of preventing the construction of a specific residential development.

(5) Mandate the approval of any or all final subdivision maps for residential housing projects which have previously received a tentative map approval from the city, county, or city and county pursuant to Division 2 (commencing with Section 66410) when the final map conforms to the approved tentative map, the tentative map has not expired, and where approval will not impact on the ability of the city, county, or city and county to properly adopt and implement an adequate housing element.

(6) Mandate that notwithstanding the provisions of Sections 66473.5 and 66474, any tentative subdivision map for a residential housing project shall be approved if all of the following requirements are met:

(A) The approval of the map will not significantly impair the ability of the city, county, or city and county to adopt and implement those elements or portions thereof of the general plan which have been held to be inadequate.

(B) The map complies with all of the provisions of Division 2 (commencing with Section 66410), except those parts which would require disapproval of the project due to the inadequacy of the general plan.

(C) The approval of the map will not affect the ability of the city, county, or city and county to adopt and implement an adequate housing element.

(D) The map is consistent with the portions of the general plan not found inadequate and the proposed revisions, if applicable, to the part of the plan held inadequate.

(Gov. Code § 65755(a).)

Respondent contends that Petitioner’s requests for relief in prayers 3, 4(b), and 4(c) are not authorized by section 65755 or any other law. Petitioner has not opposed the motion to strike and therefore cites no authority suggesting these remedies are available. (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”].)

Paragraph 4(c)

In paragraph 4(c), Petitioner requests a judicial declaration that “[a]ll zoning actions, subdivision actions, and public works projects that were and are inconsistent with the general plan prior to the adoption of a housing element that substantially complies with state law are set aside.” This relief is not authorized by section 65755. Further, as argued by Respondent, the declaration requested in paragraph 4(c) would constitute an “an impermissible collateral attack against already final decisions.” (Motion to Strike 11:24-25.) The requested declaration would conflict with, among other things, the short 90-day statute of limitations that applies to lawsuits that challenge “the decision of a legislative body to adopt or amend a zoning ordinance.” (Gov. Code § 65009(c)(1)(B).) Paragraph 4(c) also creates a vested rights problem in that it would apply to property owners who have performed substantial work in reliance on permits issued by the City. (See Hafen v. County of Orange (2005) 128 Cal.App.4th 133, 142-4.) Therefore, the motion to strike is granted in this respect. The court denies leave to amend.

Paragraph 3

In paragraph 3 of the prayer, Petitioner seeks “[a]n injunction limiting approvals of additional subdivision maps, parcel maps, rezonings, public works projects, and the issuance of business permits pending adoption of a complete and adequate general plan.” As worded, this broad injunctive relief is not authorized by section 65755. If such relief were granted, it could contradict provisions in section 65755 allowing for the adoption of zone changes and subdivision maps when certain criteria are met. (See Gov. Code § 65755(b).) This paragraph appears to be unnecessary, as the petition already seeks “[a]n injunction or other order under Government Code Section 65755.” (Pet. Prayer ¶ 2.) Therefore, the motion to strike is granted in this respect. The court denies leave to amend.

Paragraph 4(b)

In paragraph 4(b), Petitioner requests the following judicial declaration:

The City is not permitted to use the provisions in subdivision (d)(1) or (d)(5) of Government Code Section 65589.5 to disapprove a housing development project that qualifies for approval under subdivision (d) of that section—that is, a project in which either (A) at least 20 percent of the total units shall be sold or rented to lower income households, as defined in Health and Safety Code Section 50079.5, or (B) 100 percent of the units shall be sold or rented to persons and families of moderate income as defined in Health and Safety Code Section 50093, or persons and families of middle income, as defined in Government Code Section 65008— or to condition the approval of such a project in a manner that renders it infeasible for development for the use of very low, low-, or moderate-income households, or an emergency shelter, including through the use of design review standards.

Government Code sections 65755 and 65589.5 do not authorize such broad declaratory relief. Under Government Code section 65589.5(d)(1)-(2), the City may disapprove a housing development project in certain circumstances, including if the development project or emergency shelter as proposed would have a specific, adverse impact upon the public health or safety. As Respondent argues, Paragraph 4(b) of the prayer is improper because it contracts these provisions of section 65589.5(d). (Mot. 14.) Therefore, the motion to strike is granted in this respect. The court denies leave to amend.

CONCLUSION AND ORDER

Based upon the foregoing, the court orders as follows:

1. The motion to strike is granted. The court strikes paragraphs 3, 4(b), and 4(c) from the petition.

2. The court denies leave to amend.

3. Respondent’s 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