Judge: Stephen I. Goorvitch, Case: 24STCV16728, Date: 2024-07-12 Tentative Ruling

Case Number: 24STCV16728    Hearing Date: July 12, 2024    Dept: 82

Ocean 11 RV Park, LLC v. City of Los Angeles
Case No. 24STCV16728

[Tentative] Order Denying Ex Parte Application for Temporary Restraining Order

In the fall of 2023, Plaintiff Ocean 11 RV Park, LLC (“Plaintiff”) began the process of developing an RV Park, located at 23416 President Avenue in Harbor City, California 90710. (Silver Decl. ¶ 3.)  On or about November 2, 2023, Plaintiff’s authorized agent and member, Stewart Silver, met with the City of Los Angeles (the “City”), Department of Planning (the “LADDS”), and submitted plans for the public benefit application (“PBA”) application for the property. (Id. ¶ 4.)  On November 21, 2023, Plaintiff closed escrow in the property for $1.45 million. (Id. ¶ 5.)  The City’s review process occurred between November 9, 2023, and March 22, 2024. (Id. ¶ 6.)

Plaintiff’s counsel and Mr. Silver allege as follows:  The permit for the PBA application was approved and issued on March 22, 2024. (Id. ¶ 8 & Exh. 4.)  After the permit was issue on March 22, 2024, we began construction on the Property that has been ongoing since March 22, 2024.  (Id. ¶ 8.)  The only remaining issues to be cleared before receiving a Certificate of Occupancy was approval of landscaping and power lines.  (Id. ¶ 10.)  There was an inspection scheduled for both on June 28, 2024 and July 2, 2024, based upon which Plaintiff excepted to “be able to move people into the park within a few days after the July 2, 2024 final inspection.”  (Ibid.)  However, according to Mr. Silver, on or about June 14, 2024, the City Councilmember from the 15th District (where the property is located), Tim McOsker, presented a motion to the City Council to effectively stop the project over alleged environmental concerns.  (Id. ¶ 11.) Between June 14 and June 28, 2020, Mr. Silver had regular communication with Mr. McOsker to address his concerns regarding construction of the RV park. (Id. ¶ 12.) Mr. McOsker introduced an amended motion, and the City Council held a hearing on June 28, 2024. (Id. ¶¶ 13-14.)  Mr. Silver and his attorney attended the hearing, as did “concerned residents that want the Park build [sic].” (Id. ¶ 15.)  Following the hearing, the City Council approved Mr. McOsker’s amended motion.  (Ibid.)  The City Council has ordered the LADDS to halt any pending approvals of the project and to report on two issues: (1) Whether the City’s short-term rental ordinance would be applicable to the proposed use as currently being promoted and, if applicable, what requirements are necessary for the use to comply and what enforcement mechanism exist; and (2) The type and extent of the “public benefits” associated with the proposed use, a description of the public benefits checklist and standards that qualify this project as a “public benefit project,” and a description of the City’s ability to impose additional conditions for the use of the land. (Id. Exhs. 1 & 2.)  At the prior hearing on this matter, Mr. Silver and Plaintiff’s counsel attempted to portray this as a political issue based upon complaints from Mr. McOsker’s constituents.    

Plaintiff filed an ex parte application to “restore the status quo with respect to the Public Benefits application and permit that was previously approve and issued by the City on March 22, 2024.”  (Ex Parte Application, p. 2:6-7; Declaration of Chris C. Chapman ¶¶ 2-3.)  Originally, the hearing on the ex parte application was set for Monday, July 8, 2024.  However, the court was concerned that the City had not received sufficient notice of this ex parte application and the relief sought.  Plaintiff’s counsel provided notice on Friday, July 5, 2024—the Friday after a holiday, which was July 4, 2024—and admitted at the hearing that he left voicemails and never spoke to a live person at the City Clerk’s Office or City Attorney’s Office.  The complaint and ex parte application in this case were not filed until Monday, July 8, 2024, at 8:30 a.m., the same date/time as the original hearing on this ex parte application.  There was no proof of service on file, and Plaintiff’s counsel’s declaration did not state that he served a copy of the ex parte application for a temporary restraining order on the City or the attorney handling this matter. Accordingly, the court continued the hearing to afford the City sufficient notice and opportunity to be heard.

The City’s opposition to the ex parte application paints a different picture.  It is true that the planning staff “thought that the project met all of the required Performance Standards for a Public Benefits approval for an RV Park.”  (Declaration of Anna M. Vidal ¶ 3.)  Then, in April 2024, two members of the planning staff—Anna M. Vidal and Ruben Vasquez—“double checked the project’s compliance with the twelve Public Benefits project performance standards in LAMC section 14.00.A.7 . . . [and] determined that there was an issue.  (Id. ¶ 4; see also Declaration of Ruben C. Vasquez ¶ 4.)  The planners met with Stewart Silver, among others, on April 30, 2024, to discuss the issues and advised Plaintiff to make changes.  (Declaration of Anna M. Vidal ¶ 4.)  In June 2024, the planning staff re-reviewed the plans and determined that at least one of the required performance standards—Number Three—still had not been met.  (Ibid.)  The planning staff attended the City Council meeting on June 28, 2024, and discussed the lacking compliance with the performance standard.  (Id. ¶ 5.)  Then, on July 1, 2024, at 9:00 p.m., Plaintiff emailed revised plans.  (Id. ¶ 6.)  The revised plans “did not clearly show compatibility with Public Benefits Standard 5, that the property has a ten-foot landscaped buffer.”  (Ibid.)  In response, Plaintiff submitted revised plans on July 2, 2024, after 2 p.m.  (Id. ¶ 7.)  The latest plans indicate a change in that there will be 39 pads instead of 46 pads.  (Id. ¶ 8.)  Ms. Vidal emailed to confirm receipt and asked for “some time to review it” on July 3, 2024, 1:27 p.m.  (Id. ¶ 7 & Exh. C.)  This action was filed on July 8, 2024, at 8:30 a.m.  It is unclear whether the planning staff has had sufficient time to review the plans.   

The court denies Plaintiff’s ex parte application for a temporary restraining order and order to show cause why a preliminary injunction shall not issue.  Effectively, Plaintiff seeks an order mandating that the City issue the permit.  “A preliminary mandatory injunction is rarely granted . . . [and] is not permitted except in extreme cases where the right thereto is clearly established.”  (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625, citations and quotations omitted.)  Plaintiff has not established a likelihood of success on the merits.  Based upon the record before this court, it appears that this case is not about an applicant who has a “vested right” to a permit but for the political interference of a member of the City Council.  Rather, the record suggests that the permit was issued in error, and Plaintiff still has not corrected the issues.  Nor is there a sufficient showing of irreparable harm, as Plaintiff does not make clear why it cannot resolve the outstanding issues in a timely manner.  To the contrary, if the court grants this application, it would effectively overrule the City’s requirements and permit use of a non-compliant RV park, which may give rise to harm to the City and/or residents. 

Based upon the foregoing, the court orders as follows:

1.         Plaintiff’s ex parte application is denied.

2.         The City shall file an answer within thirty (30) days.

3.         The court sets a case management conference for _______, 2024, at ___ a.m. in Department ______.

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