Judge: Stephen I. Goorvitch, Case: 24STCP03668, Date: 2025-05-07 Tentative Ruling

Case Number: 24STCP03668    Hearing Date: May 7, 2025    Dept: 82

Stewards of South Griffith Park, Inc.                    Case No. 24STCP03668

v.                                                                     Hearing: May 7, 2025

                                                                        Location: Stanley Mosk Courthouse

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

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

[Tentative] Order Denying Motion to Strike the First Amended Petition as Moot

INTRODUCTION  

            Petitioner Stewards of South Griffith Park, Inc. (“Petitioner”) filed the operative first amended petition for writ of mandate against the City of Los Angeles and related individuals and entities (collectively, the “City” or “Respondents”).  Now, Respondents demur to every cause of action.  The court sustains the first and second causes of action seeking writs of mandate without leave to amend because Petitioner does not, and cannot, allege a ministerial duty.  The court sustains the demurrer to the third cause of action—seeking a writ of mandate to set aside an appropriation of $42,000 based upon alleged voting improprieties—with leave to amend but has concerns that Petitioner’s allegations violate Code of Civil Procedure section 128.7.  The court sustains the fourth cause of action under the California Public Records Act without leave to amend because Petitioner has withdrawn that claim.  Finally, the court sustains the fifth cause of action for an injunction—to prevent the City from making the $42,000 payment—without leave to amend.  An injunction is a remedy, not a cause of action, and the payment has already been made, rendering the issue moot. 

BACKGROUND

            In this writ proceeding, Petitioner challenges the City’s approval of permits for the Riverside Drive Bridge Home Shelter (the “Shelter”), a temporary homeless shelter located in a parking lot within the boundaries of Griffith Park.  On December 10, 2019, the City Council approved construction of the Shelter.  (FAP ¶ 36; Mahlowitz Decl. Exh. M-3.)  The Notice of Exemption from CEQA describes the Shelter project as follows:

The proposed Project is the construction of a temporary homeless shelter … that will consist of a temporary change in use from a City of Los Angeles Department of Recreation and Parks (City)-owned parcel to an A Bridge Home emergency homeless shelter. The County of Los Angeles will lease and operate the facility for up to 3 years…. The nature of this project is to serve the local homeless community in order to provide access to emergency shelter, hygiene, storage, food services and case management. The purpose of the project is to provide emergency shelter for the homeless to help bridge their transition from living on the streets to finding services and, ultimately, living in transitional and/or permanent housing; and to collect information and data. The site property is located at 3210 and 3248 Riverside Drive, Los Angeles, CA 90027, as shown in Figure 1 – Project Site Location. The Project location is a partially developed and improved parcel that is approximately 3.3 acres …. The project site is approximately 28,500-square feet (sf) of the total parcel area and is proposed to be generally situated on an existing surface parking lot that currently has 56 parking spaces. The City-owned lot is located in the City of Los Angeles Council District 4 in the Hollywood Community Plan Area. The project design includes a total of approximately 28,500-sf; up to a 10,800 square-foot (sf) tent structure with approximately 100 beds, an approximately 1,080-sf hygiene trailer, an approximately 1,080-sf administration/intake trailer, a repose garden, bin storage area, waste and recycling area, an approximately 3,500-sf of elevated deck with stairs and ramps, an approximately 680-sf outdoor pet area and general open space that would serve the local homeless community…. The project site is located within the south east portion of Griffith Park, a City of Los Angeles Historical Cultural Monument within the Loz Feliz community just southeast of the intersection of Riverside Drive and Los Feliz Boulevard; on the west side of Riverside Drive.

(Mahlowitz Decl. Exh. M-2 at 31.) 

Because the Shelter is located on a parking lot within the boundaries of Griffith Park, City Charter sections 507, 590, and 591 required the Board of Recreation and Park Commissioners (the “Board”) to authorize use of the parking lot.  Therefore, in September 2019, before the City Council approved the Shelter, the Board authorized the Department of Recreation and Parks (the “Department” or “DRP”) to issue a right of entry (“ROE”) permit to the City’s General Services Department (“GSD”) and its contractors allowing temporary access to Griffith Park to construct and operate the Shelter.  (Id., Exh. M-19 [Charter] and M-4 [Board authorization]). On July 8, 2020, the DRP issued Right of Entry Permit No. 1033, setting conditions for the use of the parking lot. (the “ROE Permit”) (Id., Exh. M-7.)

The term of the ROE Permit was from July 8, 2020, to July 7, 2023.  (Ibid.)  Once the three-year lease term expired in July, 2023, the City Council “approved two separate one-year lease extensions; one for the term July 10, 2023-July 9, 2024; and a second one-year term extension from July 10, 2024 through July 9, 2025.”  (FAP ¶ 39.)  On November 12, 2024, Petitioner filed this writ action, and on February 19, 2025, Petitioner filed the operative FAP.  Among other relief, Petitioner seeks a writ directing the DRP to set aside all permits, approvals, contracts, resolutions, letters, ordinances, certifications, and other actions for the Shelter, including the ROE Permit.  (FAP Prayer ¶ 1.)

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.)  The court “assumes the truth of all well-pleaded facts, as well as those that are judicially noticeable, but not contentions, deductions or conclusions of fact or law.”  (Van de Kamps Coalition v. Board of Trustees of Los Angeles Community College Dist. (2012) 206 Cal. App. 4th 1036, 1045.)  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: (1) Exhibits M2 to M-27 attached to the Declaration of Robert M. Mahlowitz; (2) Exhibits P-1 to P-4 attached to the Declaration of Raymundo Porras; (3) Exhibits K-1 to K-3 attached to the Declaration of Walker King; and

(4) the seven recordings of Public City Council Meetings and meetings of the City Board of Recreation and Park Commissioners lodged on a thumb drive with the court as Record Nos. 1 to 7.  (RJN filed March 21, 2025 at 2:1-6.)  Petitioner has not filed any objection to the request.  The request for judicial notice is granted.  The court judicially notices the existence and legal effect of these records.  However, the court does not judicially notice the truth of factual statements in these records.  (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 [“While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein.”]; Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374 [“Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.”]; Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1133-1134 [“A demurrer is simply not the appropriate procedure for determining the truth of disputed facts”].)            

DISCUSSION

A.        Code of Civil Procedure section 1085

The petition is properly brought under Code of Civil Procedure section 1085.  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.)  “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.)  “To compel the [respondent] to take some action the [petitioner] must plead and prove the [respondent] has failed to act, and its failure to act is arbitrary, beyond the bounds of reason, or in derogation of the applicable legal standards.” 

B.        First Cause of Action – Sustained without Leave to Amend

In the first cause of action, Petitioner seeks a writ to set aside “any and all permits, approvals, contracts, resolutions, letters, ordinances, certifications, and other actions, including the ROE (Right of Entry) Permit” relating to the Shelter.  (Pet. Prayer ¶ 1.)  Petitioner alleges that Councilperson Raman and the City Council “have a mandatory duty to adhere to the conditions subsequent[ly] imposed by the” DRP on the ROE Permit, including to report on the “financial, managerial, and performance efficacy and success” of the Shelter program.  (FAP

¶ 41.)  Petitioner alleges that Councilmember Raman “failed to fulfill her responsibilities under the foregoing condition” because she gave “false reports” about the Shelter program.  (Id. ¶ 42.)  Petitioner also alleges that a written report issued in December 2024 “confirmed that only 8% of the (temporary) residents of the Riverside Drive Bridge Home Shelter were successfully placed in permanent housing between July 1, 2024, and November 24, 2024.”  (Id. ¶ 43.)  Petitioner alleges that the report “demonstrates that the Riverside Drive Bridge Home Shelter is a failure; and further, that the absence of measurable performance standards or criteria … have created a circumstance where the CITY’S stated policy objectives with regard to the operation of the Riverside Drive Bridge Home Shelter have not, and cannot be met.”  (Id. ¶ 43.)  Petitioner contends that these circumstances “merit[] this Court’s revocation of the ROE Permit.”  (Id. ¶ 43.) 

Respondents contend that the first cause of action is defectively pleaded because the ROE Permit “provides that enforcement of all conditions is optional, thus, establishing no ministerial obligation enforceable via writ.”  (Dem. 19:12-13.)  The court agrees.  Section 12 of the ROE Permit states:

The DEPARTMENT may revoke this permit at any time or if PERMITTEE does not comply with the conditions contained herein. Upon receipt of the written notice of revocation, PERMITTEE shall return the property to its original condition and discontinue all work permitted under this permit.

(Mahlowitz Decl. Exh. M-7 at 64-65 [emphasis added].)  Further, section 3 similarly states that “[t]his permit can be terminated by the DEPARTMENT as listed in Condition No. 12.”  (Id. at 63 [emphasis added].)  Thus, the ROE Permit vests discretion in the Department to determine if the permittee has failed to comply with the conditions.  Section 12 of the ROE Permit does not impose a ministerial duty on the Department that can be enforced by mandate. 

            Further, the FAP does not allege sufficient facts to support a claim that the reporting requirements have been violated.  Amendment No. 2 of the ROE Permit, issued in June 2024, adds the following reporting requirements as Section 14 of the permit:

A.    PERMITTEE will coordinate with the City Administrative Officer to provide the Board of Recreation and Parks Commissioners with a written and verbal report with performance review information of the Project every six (6) months. The report data shall be drawn from information and metrics already collected, including, but not limited to: the number of client intakes, the number of client exits, the number of client housing placements, shelter occupancy, the number of encampments outside the facility, and any other pertinent information requested by RAP. This report should also include status updates on the facility’s cleanliness, security, trash pickup, and the Ambassador Program.

B.    PERMITTEE and the City of Los Angeles Council District 4 shall report back to the Board of Recreation and Park Commissioners every two (2) months to discuss the implementation of the temporary homeless shelter, the related “Ambassador Program,” and the status of addressing public safety concerns raised by local community members.

(Mahlowitz Decl. Exh. M-7 at 71-72.)  Board meeting records show that Council District 4 and the City Administrative Officer (CAO) have regularly reported to the Board at public meetings about the Shelter program.  (Id. M-12 to M-16.)  Although Petitioner criticizes these reports, Petitioner does not dispute that the reports have been made.  (FAP ¶¶ 42-43.)  At heart, Petitioner is challenging the contents of these reports, alleging that they are “false.”  Under these circumstances, the ROE Permit does not impose a ministerial duty on Respondents that can be enforced by mandate with respect to these reporting requirements. 

            Finally, in opposition, Petitioner concedes that “since the filing of the writ petition last November, and the filing of the First Amended Petition on February 19, 2025, there has been some advancement toward the accomplishment of the objective of fiscal and performance accountability.”  (Oppo. 4, fn. 5.)  Thus, Petitioner admits the allegations of the first cause of action are not up to date. 

            Based upon the foregoing, the court sustains the demurrer to the first cause of action.  Petitioner does not articulate any basis upon which an amendment would be successful.  To the contrary, the permit makes clear that revocation is a discretionary—not ministerial—remedy for any violation.  Therefore, the court denies leave to amend. 

C.        Second Cause of Action – Sustained without Leave to Amend  

In the second cause of action, Petitioner seeks a writ directing the Department of General Services to enter into an MOU with the Department of Recreation and Parks.  (Pet. Prayer ¶ 2.)  Petitioner alleges that DGS has a “mandatory duty to follow the directive of the [City Council] and negotiate an MOU with the Department of Recreation & Parks” concerning the operation of the Shelter.  (FAP ¶ 46.)  In the FAP, Petitioner relies on a report from the City’s Chief Administrative Officer (“CAO”) to the City Council, which states in pertinent part:

This report recommends the authority for the General Services Department to enter into a new or amend an existing interdepartmental agreement with the Department of Recreation and Parks and a lease agreement with the People Assisting the Homeless for the continued use of the A Bridge Home (ABH) facility located at 3248 Riverside Drive in Council District 4 for an additional year.

(FAP ¶ 46 [emphasis added].)  On June 18, 2024, the City Council adopted the specific recommendations of a June 5, 2024, report from the City Council Housing and Homelessness Committee, which, among other things, recommended the City Council “approve” Recommendation No. 2 of the attached May 31, 2024, City Administrative Officer report. (Mahlowitz Decl. Exh. M-8.)  Recommendation No. 2, approved by the City Council states,

AUTHORIZE the General Services Department (GSD) to execute a new or amend an existing interdepartmental agreement with the Department of Recreation and Parks and a lease agreement with the People Assisting the Homeless (PATH) for the A Bridge Home site located at 3248 Riverside Drive with 100 beds in Council District 4 for one year.

(Ibid.)  Thus, contrary to Petitioner’s assertions, the City Council authorized, but did not direct, GSD and DRP to execute a new “interdepartmental agreement” or to amend “an existing interdepartmental agreement” providing for continued use of the Shelter site on park land.  The City Council did not mandate what type of “interdepartmental agreement” the City departments should utilize to extend Shelter operations.  Further, the City Council did not mandate that GSD negotiate an “MOU” with DRP respecting the operation of the Shelter, as Petitioner alleges.  (FAP ¶ 46.)  

Based upon the foregoing, the court sustains the demurrer to the second cause of action.  Petitioner does not articulate any basis upon which an amendment would be successful.  To the contrary, there is no clear requirement that the Department of General Services enter into an MOU with the Department of Recreation and Parks.  Therefore, the court denies leave to amend. 

            D.        Third Cause of Action – Sustained with Leave to Amend

In the third cause of action, Petitioner seeks a writ of mandate directing Respondents to set aside a motion passed by the City Council on October 22, 2024, to pay $42,000 to Selah Neighborhood Homeless Coalition (“Selah”) for “ambassador services” to homeless persons.  (FAP ¶¶ 50-54.)  The motion states in relevant part as follows:

I FURTHER MOVE that $42,000 from the General City Purposes Fund No. 100-56, Account No. 000618 (Additional Homeless Services – Council District 4) be utilized for outreach and support services to unhoused residents served at A Bridge Home Riverside in Council District 4 to be provided by the SELAH Neighborhood Coalition for the period from November 1, 2024 to October 31, 2025.

I FURTHER MOVE that the City Clerk be instructed and authorized to prepare, process, and execute any necessary documents with and/or payments to the SELAH Neighborhood Coalition, or any other agency or organization, as appropriate, utilizing the above amount, for the above purpose, subject to the approval of the City Attorney as to form.

I FURTHER MOVE that the City Clerk be authorized to make any corrections, clarifications or revisions to the above fund transfer instructions . . . .

(FAP ¶ 51.)  Petitioner challenges the City Council’s action on the following grounds:

(i) the City Clerk does not remit payments to third-parties; that is the duty of the City Controller; and the Motion failed to direct the City Controller to act. Under the Charter, it is the City Controller who writes the checks, and accounts for all funds expended by the City; (ii) the motion is silent with respect to identifying the accounts into which the $42,000 referenced in the motion is to be transferred; (iii) the City Clerk lacks the authority under the City Charter to make contracts with third-party homeless service providers; (iv) at the time it passed the Motion, the City Council lacked a quorum, as defined under Rule 26 (as more fully alleged in paragraph 53 below); and (v) failed to respect the fact that the “ambassadorial” services to be provided by SELAH on park property required SELAH to obtain a permit from the DEPARTMENT OF RECREATION & PARKS. No such permit was ever issued….

(Id. ¶ 52, emphasis added.)

As argued in the demurrer, the City Council is not required to expressly authorize the Controller to authorize the approved payments; the motion addresses the funding which is the dispositive issue; and no Charter provision or other law precluded the City Council from authorizing the City Clerk to take steps to execute the contract with Selah.  (Dem. 23-24.)  The court finds these arguments to be persuasive.  (See e.g. City Charter § 262 at Mahlowitz Decl. Exh. M-19; Porras Decl. Exh. P-1.)  Further, Petitioner has not responded to these arguments in its opposition.  (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”].)

Petitioner argues on information and belief that “when the City Council passed the Motion on October 22, 2024, a ‘quorum’ as defined by Rule 25 of the Council Rules was not present because there were only 8 members physically present within the four-corners of the Council Chambers at the time the motion was voted upon.”  (FAP ¶ 53.)  Petitioner’s allegations are insufficient: “[A] pleading made on information and belief is insufficient if it merely asserts the facts so alleged without alleging such information that leads the plaintiff to believe that the allegations are true.”  (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158-1159, citations and internal quotations omitted.)  Here, Petitioner does not allege what information exists that leads Petitioner to believe that only eight members of the City Council were present in the Council Chambers during the vote.  To the contrary, the official record of the City Council demonstrates that 12 City Councilmembers were present and voted, and thus a quorum was present.  (See Porras Decl. Exh. 1; see also Mahlowitz Decl. Exh. M-10 at 104.)  In his opposition, Petitioner’s counsel theorizes that “[t]he voting machines of the absent Councilmembers were set to vote ‘yes’ [and] [t]his ‘ghost voting’ happens regularly.”  (Petitioner’s Memorandum of Points & Authorities in Opposition to Demurrer at 8, 9.)  Again, Petitioner articulates no basis for believing this actually occurred. 

The court is required to grant leave to amend under these circumstances.  However, the court is concerned that Petitioner’s counsel has violated Code of Civil Procedure section 128.7, which states:

By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion or other similar paper, an attorney . . . is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . [t]he claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(Code Civ. Proc. § 128.7(b)(2).)  Indeed, the official record indicates that there was a quorum.  Moreover, Petitioner’s counsel litigated this issue concerning the City Council’s vote to amend its lease with People Assisting the Homeless.  (See Mahlowitz Decl. Exh. M-17 at 7-8.)  The court (Beckloff, J.) found that there was a quorum; all present City Councilmembers were at their seats during the public comment; no member left the meeting before the vote; and no City Council rule requires City Councilmembers to return to their seats to confirm their votes.  (Ibid.)  The court found: “The evidence merely shows that at most certain City Council members were not in their seats at the time the votes were tabulated.”  (Id. at 8 fn. 6.)      

E.         Fourth Cause of Action – Sustained without Leave to Amend

Petitioner’s fourth cause of action seeks to enforce the California Public Records Act.  In its opposition, Petitioner withdraws this cause of action.  (See Oppo. 8:5-6.)  Therefore, the court sustains the demurrer to the fourth cause of action without leave to amend. 

F.         Fifth Cause of Action – Sustained without Leave to Amend  

In the fifth cause of action, Petitioner seeks an injunction pursuant to Code of Civil Procedure section 526a to enjoin an “unlawful expenditure” of $42,000 to Selah.  (FAP ¶¶ 63-67 and Prayer ¶ 5.)  “Injunctive 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.)  Moreover, Petitioner alleges that the payment has already been made, so there is nothing to enjoin.  Finally, Petitioner has not responded to the merits of the demurrer.  (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”].)  Therefore, the court sustains the demurrer to the fifth cause of action without leave to amend. 

CONCLUSION AND ORDER 

            Based upon the foregoing, the court orders as follows: 

            1.         The court sustains the demurrer to the first, second, fourth, and fifth causes of action without leave to amend.

            2.         The court sustains the demurrer to the third cause of action with leave to amend.  Petitioner shall file a second amended petition that sufficiently alleges the basis for its “information and belief” on or before May 27, 2025, and shall serve the amended petition electronically.    

            3.         The court denies the motion to strike as moot.

            4.         The court issues an order to show cause why this case should not be dismissed with prejudice for any failure to file a second amended petition, per Code of Civil Procedure section 581(f)(2).  The OSC hearing shall be held on June 6, 2025, at 9:30 a.m.  Petitioner’s counsel may file a response, if necessary, on or before May 27, 2025.  If Petitioner’s counsel files a second amended petition on or before May 27, 2025, the court will discharge the order to show cause and take the hearing off-calendar.  If Petitioner’s counsel does not file a second amended petition on or before May 27, 2025, the court will hold a hearing and, absent good cause, will dismiss this case without prejudice. 

            5.         Respondent shall file an answer or responsive pleading within statutory deadlines.

            6.         The court continues the trial setting conference to August 8, 2025, at 9:30 a.m.

            7.         The court authorizes the City to notice any noticed motion(s) for hearing on August 8, 2025, at 9:30 a.m.

            8.         The court’s clerk shall provide notice.          

IT IS SO ORDERED

Dated: May 7, 2025                                                    ______________________

                                                                                    Stephen I. Goorvitch

                                                                                    Superior Court Judge