Judge: Stephen I. Goorvitch, Case: 24STCP02829, Date: 2025-03-19 Tentative Ruling

Case Number: 24STCP02829    Hearing Date: March 19, 2025    Dept: 82

Lorraine Boulevard Neighbors, et al.                     Case No. 24STCP02829

v.                                                                     Hearing: March 19, 2025

                                                                        Location: Stanley Mosk Courthouse

                                                                                    Department: 82                                         City of Los Angeles                                                       Judge: Stephen I. Goorvitch

[Tentative] Order Sustaining Demurrer with Leave to Amend

[Tentative] Order Denying Motion for Bond as Moot

INTRODUCTION  

            The City of Los Angeles (the “City” or “Respondent”) approved a 64-unit apartment building (the “Project”) located within the Windsor Square Historic Preservation Overlay Zone (“HPOZ”).  Now, Lorraine Boulevard Neighbors and Richard Hoffman (collectively, “Petitioners”) seek a writ of mandate directing the City to set aside its approval of the Project.  The real party in interest, the Los Angeles Opportunity Fund, LLC (the “Real Party”) demurs to the complaint and seeks an order requiring each petitioner to post an undertaking of $500,000, per Code of Civil Procedure section 529.2.  The demurrer is sustained with leave to amend, and the motion for bond is denied as moot. 

BACKGROUND

A.        Executive Directive No. 1

On December 12, 2022, Mayor Karen Bass issued a Declaration of Local Emergency concerning homelessness in Los Angeles, which was adopted by the City Council on December 13, 2022.  (Petition for Writ of Mandate (“Petition”) ¶ 2.)  On December 16, 2022, Mayor Karen Bass issued Executive Directive No. 1 (“ED1”) creating a streamlined ministerial review process for applications for “100% affordable housing projects.”  (Freedman Decl. Exh. A; Pet. ¶ 2.) 

ED1 declared that qualifying projects are “deemed exempt from discretionary review processes otherwise required by either the zoning provisions of Chapter 1 of the LAMC or other Project Review including Site Plan Review as described in LAMC Section 16.05 and LAMC Section 13B.2.4, as long as such plans do not require any zoning change, variance, or General Plan amendment.”  (Freedman Decl. Exh. A, ¶ 1.)  ED1 also “direct[ed] all applicable City Departments to conduct and conclude all reviews and inspections required for 100 percent affordable housing projects or Shelters and to issue all appropriate approvals for such projects or Shelters within 60 days following the submission of the completed application.”  (Id. ¶ 4.) 

B.        The Project

On or about December 23, 2023, the Real Party filed an ED1 application with the City seeking entitlements to develop an affordable housing project (“the Project”) at 800 South Lorraine Boulevard and 4220 West 8th Street (the “Project Site”).  (Pet. ¶¶ 1, 17; see also Montazeri Decl. ¶ 4.)  As summarized by the City:

The proposed project includes the construction of a new six-story, 67-foot and 11-inch apartment structure, as measured from the lowest adjacent grade to the top of the parapet, with 64 total units consisting of 12 units reserved for Moderate Income household occupancy, 51 units reserved for Low-Income households, and one (1) Manager’s unit. The project will have a total floor area of approximately 23,543 square feet and a Floor Area Ratio (FAR) of 5.3:1. As a 100% affordable housing project, no residential parking is required per AB 2345 (California Government Code Section 65915(p)(3)), and no parking is proposed.

(Real Party’s RJN Exh. A at 8.) 

C.        The City’s Ministerial Review and Approval of the Project

On January 19, 2024, the City Planning Department issued a letter to the Real Party entitled “Status of Project Review: Development Inconsistent and On Hold” (the “Hold Letter”).  (Petition ¶ 18; Freedman Decl. Exh. D.)  The Hold Letter specified that the City Planning Department had determined that the application “does not contain sufficient information to determine whether the project is consistent, compliant, or in conformity with the requisite objective standards,” including standards contained in the Windsor Village HPOZ Preservation Plan and the applicable “Q Condition” Ordinance No. 168,183.  (Freedman Decl., Exh. D at 2-3.)

On or about February 19, 2024, the Real Party responded to the Hold Letter and provided an updated set of plans.  (Petition ¶ 19.)  The Real Party also provided written “responses to the hold letter items,” including with respect to the Windsor Village HPOZ Preservation Plan and “Q Condition” Ordinance No. 168,183.  (Freedman Decl. Exh. G at 6-8.)  Real Party and the City Planning Department continued to correspond about certain items in February, March, and April 2024.  (Ibid.)  On April 18, 2024, a city planner with the City Planning Department emailed Real Party that “the project is deemed complete as of today.”  (Id. at 1; see also Pet. ¶ 20.) 

On or about May 9, 2024, the City Planning Department issued the Real Party a Letter of Non-Compliance.  (Petition ¶ 21; Freedman Decl. Exh. H.)  As summarized in the petition, “[t]he Letter of Non-Compliance found the Project non-compliant with the law, setting forth that the Project was requesting ten deviations from objective zoning standards, which included 5 incentives and 5 waivers of development standards, but that the Project was only entitled to 5 incentives and 1 waiver of development standards under the law.”  (Petition ¶ 21.)  On May 25, 2024, Real Party submitted an updated Project, with several design changes, that now requested five incentives and one waiver.  (Petition ¶ 22; Freedman Decl. Exh. I.)

On June 14, 2024, the Director of Planning issued a Letter of Compliance (the “letter of compliance”).  (Petition ¶ 23; Freedman Decl. Exh. J; see also RJN Exh. A.)  The letter of compliance made two decisions:

1.         The staff “determine[d], that the project qualifies as a ministerial review, pursuant to Resolution (CF 22-1545) relative to the Declaration of Local Emergency by the Mayor, dated December 12, 2022, concerning homelessness in the City of Los Angeles, pursuant to the provisions of the Los Anglees Administrative Code (LAAC) Section 8.27, adopted by the City Council on December 13, 2022 and Executive Directive 1 dated December 16, 2022 (revised July 7, 2023).”

2.         The staff “approve[d] a Density Bonus Compliance Review for a 100% Affordable Housing Development (as defined in CA Govt. Section 65915(b)(1)(G)), for a project totaling 64 dwelling units, reserving one (1) Manager’s unit, 12 units for Moderate Income household and 51 units for Low-Income household occupancy for a period of 55 years.  As the project has requested a waiver from maximum controls on density, the project is allowed five incentives and one waiver (pursuant to CA Govt. Section 65915(e)(3) and the following are granted, in addition to the unlimited density and height increase of up to 33 feet.”

(Freedman Decl. Exh. J; see also RJN Exh. A.)   The Staff found:

As a Density Bonus Housing Project that satisfies all the objective planning standards of LAMC Section 12.22 A.25(g)(3) and California Government Code Section 65915 and a 100% affordable housing project consistent with ED1 streamlined approval, the project is considered to be a ministerial project. Additionally, in accordance with Government Code Section 65915, the project as shown in Exhibit “A” is deemed to satisfy the objective planning standards and shall comply with the attached planning standards as Conditions of Approval.

(Id. at 11.) 

D.        The Petition

On September 3, 2024, Petitioners filed this petition for writ of mandate.  Petitioners raise two arguments.  First, Petitioners challenges the ED1:

ED1 was not adopted, ratified, or approved by the Los Angeles City Council, the legislative branch of the City that holds the authority to perform such functions.  The Mayor is without authority to usurp the legislative functions of the City Council.  Therefore, the City’s reliance on ED1 to approve the Project was in error.

(Petition ¶ 3.)  Second, in the alternative, Petitioners challenges the City’s decision:

The City’s action to issue the Letter of Compliance and approve the Project were arbitrary and capricious and an abuse of discretion because the City failed to require compliance with the numerous cited violations of the zoning, LAMC, and Windsor Village HPOZ Preservation Plan including but not limited to the [Q] conditions imposed by Ordinance No. 168183 and the objective standards of the Windsor Village HPOZ Preservation Plan, including the Preservation Plan requirements regarding module design, setbacks, lot coverage and topography/continuity of grade.

(Id. ¶ 29.)  The letter of compliance constitutes a final decision:

The time in which a party may seek judicial review of this determination is governed by California Code of Civil Procedures Section 1094.6. Under that provision, a petitioner may seek judicial review of any decision of the City pursuant to California Code of Civil Procedure Section 1094.5, only if the petition for writ of mandate pursuant to that section is filed no later than the 90th day following the date on which the City's decision becomes final.

(Freedman Decl. Exh. J; see also RJN Exh. A.)  The letter of compliance provided notice that the decision is “final and effective” upon the date of mailing.  (Ibid.) 

EVIDENTIARY ISSUES

            The Real Party seeks judicial notice of Exhibits A through C in support of the demurrer.  The court grants the request with respect to Exhibit A under Evidence Code section 452(c).  The court need not rule on the remaining requests in order to decide the demurrer.  (See Code Civ. Proc. § 437c(q).) 

            Petitioners request judicial notice of Exhibits 1 and 2 in opposition to the demurrer.  Petitioners also request judicial notice of Exhibits 1 through 9 in opposition to the motion for bond.  The court need not rule on these requests in order to decide the demurrer.  (See Code Civ. Proc. § 437c(q).) 

DISCUSSION

A.        Demurrer

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 Petitioners 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.) 

1.         Exhaustion of Administrative Remedies and Ripeness  

The Real Party contends that Petitioners failed to exhaust their administrative remedies, and/or the action is not ripe, because: (1) The City did not determine in the letter of compliance “that the project meets all objective development standards;” and (2) When the City “does actually perform its review of the Project’s compliance with all appliable objective development standards (as part of its processing of a building permit),” Petitioners can file an administrative appeal pursuant to Los Angeles Municipal Code (“LAMC”) section 13B.10.2.  (Demurrer (“Dem.”) 12-13.) 

“[A] basic prerequisite to judicial review of administrative acts is the existence of a ripe controversy….  A controversy is ‘ripe’ when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.”  (Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 708.)  “A decision attains the requisite administrative finality when the agency has exhausted its jurisdiction and possesses ‘no further power to reconsider or rehear the claim. Finality may be defined either expressly in the statutes governing the administrative process or it may be determined from the framework in the statutory scheme…. Until a public agency makes a ‘final’ decision, the matter is not ripe for judicial review.” (California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1482, internal quotation marks omitted.)  “The doctrine of exhaustion of administrative remedies is a closely related concept to finality. The policy reasons behind the two doctrines are similar. The exhaustion doctrine precludes review of an intermediate or interlocutory action of an administrative agency.”  (Id. at 1489.)

The court is concerned by the expansive scope (or ambiguity) of the petition.   The letter of compliance is relatively narrow.  The staff made two decisions: (1) The project qualifies as a ministerial review under ED1; and (2) The project qualifies for a density bonus of 64 units because it is a “100% Affordable Housing Development.”  (Freedman Decl. Exh. J; see also RJN Exh. A.)  The staff also imposed “conditions of approval” for the density bonus, titled “Density Bonus Conditions.”  (Ibid.)  Yet, the petition seeks a broad review of the Project:

The City’s action to issue the Letter of Compliance and approve the Project were arbitrary and capricious and an abuse of discretion because the City failed to require compliance with the numerous cited violations of the zoning, LAMC, and Windsor Village HPOZ Preservation Plan including but not limited to the [Q] conditions imposed by Ordinance No. 168183 and the objective standards of the Windsor Village HPOZ Preservation Plan, including the Preservation Plan requirements regarding module design, setbacks, lot coverage and topography/continuity of grade.

(Id. ¶ 29 [emphasis added].)  Contrary to Petitioners’ allegations, the letter of compliance is not a decision to “approve the project.”  The letter of compliance approves only specific aspects of the project, i.e., the density bonus for a “100% Affordable Housing Development” and the “Density Bonus Conditions.”  The letter of compliance makes clear that it is not approving the Project in its entirety:

Prior to the issuance of any building permits for the project by the Department of Building and Safety, the applicant shall submit all final construction plans that are awaiting issuance of a building permit by the Department of Building and Safety for final review and approval by the Department of City Planning. . . .  Plans submitted to the Department of Building and Safety . . . shall include all of the Conditions of Approval herein attached as a cover sheet, and shall include any modification or notations required herein. . . .  The granting of this determination by the Director of Planning does not in any way indicate full compliance with applicable provisions of the Los Angeles Municipal Code Chapter IX (Building Code).  Any correction and/or modifications to plans made subsequent to this determination by a Department of Building and Safety Plan Check Engineer that affect any part of the exterior design or appearance of the project as approved by the Director, and which are deemed necessary by the Department of Building and Safety for Building Code compliance, shall require a referral of the revised plans back to the Department of City Planning for additional review and sign-off prior to the issuance of any permit in connection with those plans. 

(Freedman Decl. Exh. J; see also RJN Exh. A.)   

            The grounds for Petitioners’ challenge do not alleviate the court’s concerns.  To the contrary.  Petitioners allege that the City’s decision to approve a density bonus and related conditions violate “numerous” zoning laws and several aspects of the HPOZ Preservation Plan, including “the Preservation Plan requirements regarding module design, setbacks, lot coverage and topography/continuity of grade.”  But the letter of compliance does not appear to address “module design” or “topography/continuity of grade.”  The broad nature of these allegations suggests that Petitioners seek to challenge more than simply the density bonus and related conditions. 

In sum, Petitioners appear to challenge decisions beyond the scope of the letter of compliance, some of which had not been made at the time the letter of compliance was issued.  Accordingly, Petitioners have not exhausted their administrative remedies, and some of the decisions they challenge are not yet ripe.  Simply, Petitioners may challenge any decision in the letter of compliance on any applicable basis; they may not challenge decisions beyond the letter of compliance in this writ proceeding.  Therefore, the court sustains the demurrer.  The court grants leave to amend, but the amended petition must specifically identify which decisions are being challenged, e.g., by identifying the decisions in the letter of compliance at issue, by making clear Petitioners only challenge the decisions in the letter of compliance, etc.  The court need not reach the Real Party’s argument concerning uncertainty, which is related to this issue. 

            2.         Statute of Limitations

The Real Party contends that Petitioners’ claim challenging ED1 is barred by the 90-day statute of limitations in Government Code section 65009(c)(1).  (Dem. 14.)  “A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily barred.  It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred.”  (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881, citations and internal quotation marks omitted.) 

Government Code section 65009(c)(1) provides for a 90-day limitations period to challenge various planning or zoning decisions.  There are six sub-parts in section 65009(c)(1), subdivisions (A) to (F).  Specifically, as summarized by the Supreme Court:

[S]ection 65009 establishes a short statute of limitations, 90 days, applicable to actions challenging several types of local planning and zoning decisions: the adoption of a general or specific plan (id., subd. (c)(1)(A)); the adoption of a zoning ordinance (id., subd. (c)(1)(B)); the adoption of a regulation attached to a specific plan (id., subd. (c)(1)(C)); the adoption of a development agreement (id., subd. (c)(1)(D)); and the grant, denial, or imposition of conditions on a variance or permit (id., subd. (c)(1)(E)). Subdivision (e) of the statute provides that after expiration of the limitations period, “all persons are barred from any further action or proceeding.”

(Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 765-766.)  In the demurrer, the Real Party does not identify which of these subdivisions is applicable to the Mayor’s issuance of ED1.  (Dem. 14.)  For that reason, the demurrer based on the statute of limitations is deficient.  In reply, the Real Party appears to contend that subdivisions (c)(1)(B) or (C) apply to this case.  (Reply 4:15-20.)  Real Party does not show good cause to raise new arguments in reply.  (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.)  Therefore, the court cannot rule on this issue at this time.  This order is without prejudice to the Real Party raising this issue in any responsive pleading to the first amended petition or during trial.    

CONCLUSION AND ORDER 

Based upon the foregoing, the court orders as follows:

1.         The Real Party’s demurrer is sustained with leave to amend.  Petitioners shall file a first amended petition on or before April 10, 2025.

2.         The court continues the trial setting conference to June 6, 2025, at 9:30 a.m.

3.         The court shall hear any demurrer to the first amended petition on June 6, 2025, at 9:30 a.m.  The court orders Respondent and/or the Real Party to file and serve any demurrer sufficiently in advance to afford statutory notice.

4.         The motion for bond is denied as moot.

5.         Counsel for the Real Party shall provide notice and file proof of service with the court. 

IT IS SO ORDERED

Dated: March 19, 2025                                               ______________________

                                                                                    Stephen I. Goorvitch

                                                                                    Superior Court Judge