Judge Stephen I. Goorvitch, Case Number: 24STCP02773, Date: 2024-09-25 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP02773, Date: 2024-09-25 Tentative Ruling

Plated Personal Chef Services Ltd. (“Petitioner”) operates a restaurant, the Saucy Bird, located on Pico Boulevard in Los Angeles, California. According to Petitioner, the parking lot across the street—which is located at 2377 Midvale Avenue (“Lot 707”)—is “the only public, off-street parking available for the businesses on the stretch of Pico Boulevard near the Lot.” (Motion for Preliminary Injunction filed September 9, 2024 (“Mot.”) 3.) The City originally acquired Lot 707 by eminent domain in 1990 for the purpose of establishing a public off-street parking lot. More recently, however, the City of Los Angeles and the City Council (collectively, the “City” or “Respondents”) authorized Lot 707 to be used for affordable housing and commenced construction of that project in August 2024. The court (Kin, J.) previously granted an ex parte application for a temporary restraining order and set an order to show cause why a preliminary injunction should not issue. Petitioner seeks a mandatory injunction directing the City “to restore” Lot 707 to its prior use.

Petitioner seeks a mandatory injunction pending trial in this matter. “The granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” (Teachers Ins. & Annuity Ass’n v. Furlotti (1999) 70 Cal.App.4th 1487, 1493.) “A preliminary mandatory injunction is rarely granted….” (Board of Supervisors v. McMahon (1990) 219 Cal. App.3d 286, 295.) Petitioner does not satisfy this standard for three independent reasons. First, the statute upon which Petitioner relies—Code of Civil Procedure section 1245.245—applies to property acquired by eminent domain after January 1, 2007, and this property was seized before that date. Second, even if section 1245.245 applies retroactively, Petitioner lacks standing to file an action under section 1245.245. Finally, even if section 1245.245 applies retroactively, and even if Petitioner has standing, the court cannot issue a writ directing the City to exercise its discretion in a particular way, so the court does not have authority to issue the requested preliminary injunction. To the extent the court must consider the balance of harms, that analysis favors the City. Therefore, the court dissolves the temporary restraining order and discharges the order to show cause why a preliminary injunction should not issue.

In 1990, the City Council passed, and then Mayor Tom Bradley approved, Ordinance Number 166003 to acquire Lot 707 by eminent domain (“Ordinance”). In the Ordinance, the City Council found that the public interest and necessity require the acquisition of Lot 707 “for public off-street parking.” (Slade Decl. Exh. B.) The Ordinance also includes the following findings:

[T]he project is planned and located in the manner which is most compatible with the greatest public good and the least private injury, and the property described herein is necessary for the project; and the property has been appraised and an amount has been established which it is believed to be just compensation for the property, and an offer has been made to the owner or owners of record to acquire the property for the full amount of said just compensation.

The stretch of Pico Boulevard where Lot 707 and the Saucy Bird are located is subject to an “anti-gridlock” zoning ordinance and parking is prohibited between the hours of 4 p.m. and 7 p.m. (See Slade Decl. Exh. C; LAMC § 80.70; Callesano Decl. ¶ 4.) The surrounding neighborhood is permit-only parking, which further limits parking options for the Saucy Bird and similarly situated businesses in the area. (Callesano Decl. ¶ 4; see also Waters Decl. ¶¶ 7-18; Cai Decl. ¶¶ 2-21; but see Mahlowitz Decl. Exh. 9 at 94 [discussion of local parking options].)

On July 7, 2023, Mayor Karen Bass executed a Declaration of Local Housing and Homelessness Emergency. (Mahlowitz Decl. Exh. 2-3.) On October 20, 2023, the City Council approved and allocated funding for a project, referred to as the “Midvale Ave Interim Housing project” or “Midvale Shelter,” that would provide “emergency shelter for approximately 33 individuals experiencing homelessness” at Lot 707. (Id. Exh. 5; Exh. 6 at 42; and Exh. 7.) The project approval cites the Mayor’s July 7, 2023, declaration and states that “[t]he Project is a specific action necessary to prevent or mitigate an emergency – the conditions arising from a sudden and unexpected dramatic rise in the City’s already dangerously large homeless population.” (Id. Exh. 6 at 53.)

The City’s solicitation of bids, released in February 2024, describes the project as follows:

New emergency homeless housing project on an existing LADOT parking lot 707 at 2377 S Midvale Ave (north lot) and 10909 W Pico Blvd (south lot). The project will provide modular units and beds for up to 33 individuals (18 in the north lot and 15 in the south lot). Site Amenities include modular units with restrooms, showers, and lavatories; laundry stations; administrative offices; community room; and pet relief area. Site to have perimeter fencing.

(Mahlowitz Decl. Exh. 8, Quinonez Decl. ¶ 5, Exh. 1 at 78.) The City architect involved in preparing the request for proposals also explains:

The Midvale Shelter is designed and will be constructed to be modular and removable. The Midvale Shelter is designed to be installed atop two existing surface-level City asphalt parking lots so that when the Midvale Shelter is removed, the lots will be useable as parking lots and will return to their parking lot use.

In July 2024, the City Board of Public Works approved a construction contract for the Midvale Shelter following a public bidding. (Id. ¶ 7, Exh. 3.) On or about August 16, 2024, the City announced the closure of Lot 707 for public parking, effective Monday, August 19, 2024. Demolition of the lot began on or about August 19, 2024. (Cai Decl. ¶ 13; Waters Decl. ¶ 10; Collesano Decl. ¶¶ 10-11.)

Petitioner submits evidence that, at the City Council meeting on October 20, 2023, Councilmember Katy Yaroslavsky stated: “For the businesses on Pico, you have my word that we’re going to secure additional parking before we break ground on this Project.” (Fliegelman Decl. ¶ 3.) Respondents submit evidence that the City has taken steps to find alternate parking, but that it has not completed that process. (See Morales Decl. ¶¶ 3-6 [summarizing the City’s “work exploring efforts that could create additional public parking in the neighborhood near the Midvale Project”]; Resp. RJN Exh. 18.)

On August 28, 2024, Petitioner filed its petition for writ of mandate challenging the City’s decision to convert Lot 707 into temporary, affordable housing. The next day, Petitioner filed its ex parte application for a temporary restraining order and order to show cause why a preliminary injunction should not issue. The court (Kin, J.) granted the ex parte application, issued a temporary restraining order, and issued an order to show cause why a preliminary injunction should not issue.

The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits. (Major v. Miraverde Homeowners Ass’n. (1992) 7 Cal. App. 4th 618, 623.) In deciding whether or not to grant a preliminary injunction, the court looks to two factors: (1) The likelihood that the plaintiff will prevail on the merits, and (2) The relative balance of harms that is likely to result from the granting or denial of interim injunctive relief. (See White v. Davis (2003) 30 Cal.4th 528, 553-54.) The factors are interrelated, with a greater showing on one permitting a lesser showing on the other. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) However, the party seeking an injunction must demonstrate at least a reasonable probability of success on the merits. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 73-74.) The party seeking the injunction bears the burden of demonstrating both a likelihood of success on the merits and the occurrence of irreparable harm. (Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1571.) Irreparable harm may exist if the plaintiff can show an inadequate remedy at law. (Code Civ. Proc. § 526(a).)

The court grants the parties’ requests for judicial notice, none of which is opposed. The court need not rule on respondents’ evidentiary objections. (See Code Civ. Proc. § 437c(q).)

In this case, Petitioner seeks a preliminary mandatory injunction because Petitioner seeks an order enjoining Respondents “from taking any further action to interfere with public use of Lot 707 as a parking lot, and to restore Lot 707 to its lawfully approved public parking lot use.” (Mot. 2, emphasis added.) Pictures of Lot 707 submitted in reply show that the City’s construction efforts have modified Lot 707 to a degree that it could not be used in its current form for parking. (Reply Collesano Decl. ¶ 2, Exh. A.) Thus, Petitioner seeks to compel performance of an affirmative act that changes the position of the parties.

“The granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” (Teachers Ins. & Annuity Ass’n v. Furlotti (1999) 70 Cal.App.4th 1487, 1493.) “The general rule is that an injunction is prohibitory if it requires a person¿to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties.” (Davenport v. Blue Cross of Calif. (1997) 52 Cal.App.4th 435, 448.) “A preliminary mandatory injunction is rarely granted….” (Board of Supervisors v. McMahon (1990) 219 Cal. App.3d 286, 295.)

B. Petitioner Does Not Demonstrate a Sufficient Likelihood of Success on the Merits

Petitioner does not demonstrate that it has a clear right, and this is the rare case in which a preliminary mandatory injunction should issue. Nor does Petitioner demonstrate a sufficient likelihood of success in order to obtain the prohibitory injunction, i.e., an order stopping the construction.

This petition for writ of mandate is based entirely on Code of Civil Procedure section 1245.245. Petitioner argues that under the statute, in order to change the intended use of property seized through eminent domain, the City must adopt a new “resolution of necessity” by a “super-majority of the City Council.” (Petition for Writ of Mandate (“Pet.”) ¶ 51.) Petitioner argues that the City failed to comply with this requirement. In opposition, Respondents contend that Petitioner does not have a clear right to a preliminary injunction because: (1) Section 1245.245 applies to property acquired by eminent domain after January 1, 2007, and this property was seized before that date; (2) Even if section 1245.245 applies retroactively, Petitioner lacks standing to file an action under section 1245.245; and (3) Even if section 1245.245 applies retroactively, and even if Petitioner has standing, the court cannot issue a writ directing the City to exercise its discretion in a particular way, so the court does not have authority to issue the requested preliminary injunction.[1]

The rules governing the interpretation of statutes and regulations are well-settled and clear:

We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.

(Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340, citations omitted.) These same rules apply to the interpretation of a regulation. (County of Sacramento v. State Water Resources Control Board (2007) 153 Cal.App.4th 1579, 1586.) “When interpreting statutory language, we may neither insert language which has been omitted nor ignore language which has been inserted.” (See People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 282.) “[I]nterpretations which render any part of a statute [or regulation] superfluous are to be avoided.” (Young v. McCoy (2007) 147 Cal.App.4th 1078, 1083.)

In interpreting statutes or regulations an administrative agency is responsible for enforcing, the court exercises its independent judgment, “taking into account and respecting the agency’s interpretation of its meaning.” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343; see also Yamaha Corp. of America v. State Bd. Of Equalization (1998) 19 Cal.4th 1, 11.) How much weight to accord an agency’s construction is “situational,” and depends on the circumstances. (See American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 461-462.)

Section 1245.245 was enacted in 2006 as part of Senate Bill (“SB”) 1650. There is no dispute that in order to change the intended use of property seized through eminent domain, the City Council must pass a new resolution of necessity by a vote of at least two-thirds of the members. However, section 4 of SB 1650, which is not contained within section 1245.245 states: “This act shall apply prospectively and shall apply to property acquired after January 1, 2007.” There is no dispute that this property was acquired before January 1, 2007.

Contrary to Petitioner’s assertion, section 4 of SB 1650 is part of the law adopted by the legislature. (See Mot. 9-10.) “An uncodified section is part of the statutory law.” (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925.) “The Codes of this state are simply a part of the statutory law of this state. They have no higher standing or sanctity than any other statute regularly passed by the Legislature.” (Los Angeles County v. Payne (1937) 8 Cal.2d 563, 574.)

Regardless, there is a presumption that statutes apply prospectively, not retroactively. “In construing statutes, there is a presumption against retroactive application unless the Legislature plainly has directed otherwise by means of ‘express language of retroactivity or ... other sources [that] provide a clear and unavoidable implication that the Legislature intended retroactive application.’” (California Ins. Guarantee Assn. v. Workers’ Comp. Appeals Bd. (2014) 232 Cal.App.4th 543, 561.) Similarly, Code of Civil Procedure section 3 provides, “No part of [the Code of Civil Procedure] is retroactive, unless expressly so declared.”

The rule has been expressed in varying degrees of strength but always of one import, that a retrospective operation will not be given to a statute which interferes with antecedent rights ... unless such be the unequivocal and inflexible import of the terms, and the manifest intention of the legislature.

(Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1207.) Not only is there nothing rebutting this presumption, even if section 4 of SB 1650 is not law, it provides evidence of the Legislature’s intention that the statute applies only to property acquired after January 1, 2007.

Petitioner also argues that Assembly Bill (“AB”) 299, passed into law in 2007, shows legislative intent for section 1245.245 to apply retroactively. (Mot. 11.) Petitioner is incorrect. Per its own plain language, AB 299 made “technical, nonsubstantive changes in various provisions of law.” (Slade Decl. Exh. E, emphasis added.)

For the first time in reply, Petitioner argues that it “is not asking the court to apply §1245.245 retroactively, but rather to apply it to a current purported change of use.” (Reply 4, emphasis added.) Petitioner also argues, for the first time, that section 1245.245(e)(1) establishes that all property transactions by eminent domain, regardless of when they occurred, are subject to the change of use requirements in section 1245.245(a). (Reply 4-5.) Petitioner does not show good cause to raise these arguments for the first time in reply, as Petitioner clearly knew from the time of the ex parte hearing of Respondents’ contention that Petitioner improperly seeks to apply section 1245.245 retroactively. Putting that aside, these arguments are not persuasive in light of the Legislature’s plain language: “This act shall apply prospectively and shall apply to property acquired after January 1, 2007.”

Based upon the foregoing, Petitioner cannot demonstrate a sufficient likelihood of proving at trial that Code of Civil Procedure section 1245.245 applies retroactively to a property acquired before January 1, 2007. Therefore, Petitioner is not entitled to a preliminary injunction.

Even if section 1245.245 applied retroactively, Petitioner does not demonstrate a sufficient likelihood of demonstrating that it has standing to raise this challenge. 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.)

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, citation omitted.) “A petitioner has no beneficial interest within the meaning of the statute if he or she will gain no direct benefit from [the writ’s] issuance and suffer no direct detriment if it is denied.” (SJJC Aviation Services, LLC v. City of San Jose (2017) 12 Cal.App.5th 1043, 1053).

In this case, section 1245.245 requires notice of a resolution of changed use to be provided to the original property owner. (Code Civ. Proc. § 1245.245(c); see also Code Civ. Proc. § 1245.235.) Further, the statute expressly defines the persons that may seek judicial review: “Judicial review of an action pursuant to subdivision (a) or (b) may be obtained by a person who had an interest in the property described in the resolution at the time that the property was acquired by the public entity, and shall be governed by Section 1085.” (Code Civ. Proc. § 1245.245(d).) Petitioner does not submit sufficient evidence that it had an interest in Lot 707 when it was acquired by the City in 1990. Accordingly, pursuant to the plain language of section 1245.245(c) and (d), Petitioner lacks standing to seek judicial review and does not have a beneficial interest in a writ compelling compliance with the statute.[2]

For the first time in reply, Petitioner argues that it has public interest standing to enforce section 1245.245 pursuant to Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 439. (Reply 8.) “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.) Respondents challenged Petitioner’s standing in the ex parte opposition filed September 3, 2024. Petitioner had the opportunity to address that issue in its supplemental papers filed September 9, 2024, but Petitioner failed to do so. Accordingly, Petitioner does not show good cause to raise an exception to the standing requirement in reply.

Even if section 1245.245 applies retroactively, and even if Petitioner has standing, Petitioner does not demonstrate a sufficient likelihood that the court can issue the requested relief. “The scope of available preliminary relief is necessarily limited by the scope of the relief likely to be obtained at trial on the merits.” (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1463.) Petitioner seeks a preliminary injunction enjoining Respondents “from taking any further action to interfere with public use of Lot 707 as a parking lot, and to restore Lot 707 to its lawfully approved public parking lot use.” (Mot. 2.) However, if the court were to find that the City failed to comply with section 1245.245, the court could only order the City to comply with the statute. The City would have the option of: (1) adopting a new resolution of use by a vote of two-thirds of the member; (2) selling Lot 707 as surplus property (with the original owners having the right of first refusal; or (3) restoring the parking. The court cannot compel the City to elect the third option because such an order would interfere with the City’s exercise of discretion. “[M]andamus will not lie to control the discretion of a court or officer, meaning by that that it will not lie to force the exercise of discretion in a particular manner….’” (Flores v. Dept. of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 208.) Therefore, Petitioner does not demonstrate that the court has authority to issue a preliminary injunction to “restore the parking.”

C. Petitioner Does Not Demonstrate that the Balance of Harms Favors its Position

Because Petitioner is not entitled to a preliminary injunction for the reasons discussed, so the court need not reach the issue of whether the balance of harms favors Petitioner. Regardless, this analysis does not benefit Petitioner’s position. Because Respondents are public entities, Petitioner has a high burden:

Where, as here, the defendants are public agencies and the plaintiff seeks to restrain them in the performance of their duties, public policy considerations also come into play. There is a general rule against enjoining public officers or agencies from performing their duties…. This rule would not preclude a court from enjoining unconstitutional or void acts, but to support a request for such relief the plaintiff must make a significant showing of irreparable injury.

(Tahoe Keys Property Owners’ Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1471.)

Even considering Petitioner’s evidence over Respondents’ objections, Petitioner does not submit sufficient evidence of harm to its business. Nor has Petitioner provided persuasive evidence that substitute public parking will not be arranged in the near future. Indeed, the City Council passed a motion on September 18, 2024, to negotiate and execute a lease for replacement parking at a vacant lot located on Pico Boulevard. (Resp. RJN Exh. 18-20.) Petitioner does not show that it has any vested right to public parking at Lot 707 or elsewhere. “[T]he deprivation of parking rights on abutting streets … constitutes a noncompensable exercise of the city's police power.” (See Brumer v. Los Angeles County Metropolitan Transportation Authority (1995) 36 Cal.App.4th 1738, 1749; accord People ex rel. Dept. of Public Works v. Presley (1966) 239 Cal.App.2d 309, 314-316.) Petitioner fails to address that issue or explain how it could suffer irreparable harm from the City’s exercise of its police power with respect to public parking. Finally, Petitioner substantially delayed in bringing this action and the application for injunctive relief. (See Oppo. 14, 20.) The City Council approved the Midvale Shelter project on October 20, 2023. (Mahlowitz Decl. Exh. 5; Exh. 6 at 42; and Exh. 7.) City released a solicitation of bids for construction of the project in February 2024. (Mahlowitz Decl. Exh. 8, Quinonez Decl. ¶ 5, Exh. 1 at 78.) This action was not filed until August 28, 2024. “Long delays in assertion of rights can be the basis of denial of mandatory injunctive relief.” (O’Connell v. Sup.Ct. (2006) 141 Cal.App.4th 1452, 1481.)

By contrast, Respondents have demonstrated that the City would suffer irreparable harm if the preliminary injunction is granted. The project approval cites the Mayor’s July 7, 2023, declaration and states that “[t]he Project is a specific action necessary to prevent or mitigate an emergency – the conditions arising from a sudden and unexpected dramatic rise in the City’s already dangerously large homeless population.” (Mahlowitz Decl. Exh. 6 at 53.) Further, Respondents have already commenced construction and incurred public funds on the project (which could have been avoided had Petitioner sought relief sooner). (See generally Quinonez Decl. and Reply Collesano Decl. Exh. A.) To the extent the court must reach the issue, the balance of harms weighs in favor of denying injunctive relief.

1. The court finds that Petitioner is not entitled to a preliminary injunction for the reasons discussed.

2. The court dissolves the temporary restraining order and discharges the order to show cause why a preliminary injunction shall not issue.

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

[1] Respondents also argue that Petitioner does not demonstrate that temporary use of Lot 707 for affordable housing triggers the requirements of section 1245.245. The court need not reach this issue at this time.

[2] Notably, even though this issue of standing was raised in Respondents’ ex parte brief filed on September 3, 2024, Petitioner did not address it in its supplemental motion filed September 9, 2024. (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”].)