Co. of L.A. v. Sahag-Mesrob Armenian Christian School CA2/5 ( 2013 )

Filed 12/27/13 Co. of L.A. v. Sahag-Mesrob Armenian Christian School CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
COUNTY OF LOS ANGELES, B240667
Plaintiff, Respondent and (Los Angeles County
Cross-Defendant, Super. Ct. No. GC042047)
v.
SAHAG-MESROB ARMENIAN
CHRISTIAN SCHOOL,
Defendant, Appellant and
Cross-Complainant.
APPEAL from a judgment and orders of the Superior Court of Los Angeles
County, Jan A. Pluim, Judge. Affirmed.
Kahdeman Frost and Richard J. Kahdeman for Defendant, Appellant and Cross-
Complainant.
John F. Krattli, County Counsel, Lawrence L. Hafetz, Assistant County Counsel
and Dušan Pavlović, Deputy County Counsel for Plaintiff, Respondent and Cross-
Defendant.
I. INTRODUCTION
Defendant, Shahag-Mesrob Armenian Christian School, appeals from a January
30, 2012 judgment in favor of plaintiff, the County of Los Angeles. The judgment
dismissing defendant’s cross-complaint with prejudice was entered after the trial court
granted plaintiff’s summary judgment motion. In addition, defendant appeals the denial
of its counsel’s request for a telephonic appearance. Defendant also appeals the March
28, 2012 order denying its application to vacate the judgment. We affirm the judgment
and orders.
II. PROCEDURAL HISTORY
On December 22, 2008, plaintiff filed a complaint seeking to enjoin defendant
from operating a school without a conditional use permit. On December 23, 2008,
plaintiff filed a preliminary injunction motion. On January 27, 2009, defendant filed a
cross-complaint. Defendant alleged plaintiff’s processing of the conditional use permit
and denial of the clean hands waiver application violated two federal statutes. Defendant
alleged plaintiff violated the Religious Land Use and Institutionalized Persons Act of
2000 (the act) (42 U.S.C. 2000cc) and title 42, United States Code section 1983 (section
1983). On May 29, 2009, the trial court granted defendant’s preliminary injunction
motion. On September 22, 2010, we affirmed the preliminary injunction order. (County
of Los Angeles v. Sahag-Mesrob Armenian Christian School (2010) 188 Cal. App. 4th 851,
865.) On December 29, 2010, plaintiff dismissed its complaint without prejudice.
Plaintiff’s action for injunctive and declaratory relief became moot after defendant sold
the property to a third party.
On October 27, 2011, plaintiff moved for summary judgment on the cross-
complaint. Defendant did not file an opposition because its counsel was incapacitated.
On November 28, 2011, defendant’s counsel, Richard Kahdeman, suffered a compound
fracture of his left ankle that left him bedridden and in pain. On November 29, 2011,
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Christine Walters, Mr. Kahdeman’s assistant, emailed plaintiff’s counsel, Dusan
Pavlovic, requesting a 30-day extension. Mr. Pavlovic agreed to the 30-day extension
and suggested Mr. Kahdeman prepare an ex parte application to continue the summary
judgment hearing. On December 8, 2011, Ms. Walters filed a notice of unavailability for
Mr. Kahdeman notifying the court of his injury. Ms. Walters is not a lawyer.
On January 5, 2012, Ms. Walters contacted the court clerk. She requested
permission for Mr. Kahdeman to appear telephonically for the summary judgment motion
and the ex parte application to continue the hearing. On January 7, 2012, Ms. Walters e-
mailed a stipulation to continue the hearing to Mr. Pavlovic. On January 9, 2012, Mr.
Pavlovic agreed to the stipulation. But in an e-mail response, Mr. Pavlovic reminded Mr.
Kahdeman of the necessity of filing an ex parte application to continue the summary
judgment hearing. On the same day, Ms. Walters called the court clerk and learned Mr.
Kahdeman could not appear telephonically. Defendant never filed the ex parte
application for continuance of the summary judgment hearing. Instead, defendant filed a
status report regarding Mr. Kahdeman’s injuries on January 9, 2012, one day before the
summary judgment hearing.
At the January 10, 2012 hearing, Mr. Pavlovic appeared on behalf of plaintiff.
No one appeared for defendant. Mr. Pavlovic stated: “Mr. Kahdeman allegedly from
what he represented to me suffered an ankle injury. I was notified that via email on
December 1st. And they asked me if I would stipulate to a continuance. I said I had no
problem. You need to file an ex parte application in order to do that procedurally correct.
[¶] I haven’t heard anything after that until December 27. At that time Mr. Kahdeman,
again, asked me again if I would stipulate to a continuance. I told him I would. I have no
problem but you need to file an ex parte application. [¶] And then just yesterday, I got a
stipulation without an ex parte application. I signed the stipulation. But my
understanding is that no ex parte has been filed.” The trial court refused to accept the
stipulation, stating it had already decided the summary judgment motion.
On January 19, 2012, the trial court granted plaintiff’s summary judgment motion.
The trial court ruled plaintiff could not be held liable for damages under the act or section
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1983. The trial court found the injury, if any, was the result of the preliminary injunction.
In addition, the trial court ruled: denial of the clean hands waiver application did not
impose a substantial burden on defendant’s religious exercise under the act; there was no
evidence plaintiff treated defendant on less than equal terms with similarly situated
nonreligious entities in violation of the act; plaintiff did not exclude or unreasonably limit
defendant’s religious exercise; plaintiff did not intentionally interfere with defendant’s
First Amendment rights to religious exercise, free speech, and freedom of assembly and
association; there was no evidence plaintiff treated defendant unequally to similarly
situated nonreligious entities; and, plaintiff did not intentionally deprive plaintiff of
substantive due process of law. Judgment was entered in plaintiff’s favor on January 30,
2012.
On March 28, 2012, defendant filed an ex parte application for an order vacating
the judgment. Defendant argued it was deprived of the opportunity to defend itself
against the summary judgment motion in two respects. To begin with, defendant asserted
it was denied the opportunity to file a summary judgment opposition. And defendant
argued it was denied the right to a hearing to request a continuance of the summary
judgment motion. Defendant reasoned it was excused from filing an opposition because
it justifiably relied on plaintiff’s consent to a continuance more than 30 days before the
January 10, 2012 hearing. Defendant also asserted the trial court was advised in writing
and by telephone of Mr. Kahdeman’s incapacitating injuries. Defendant argued it would
be “extremely” prejudiced if its ex parte application was denied.
The trial court denied the application on March 28, 2012. The court explained:
“Court notes the following: Moving party’s Notice of Unavailability listed the dates of
11-28-11 through 1-5-12. [¶] Counsel’s secretary/assistant contacted the clerk of the
courtroom on 1-9-12 and found he would not be able to appear via Court Call for an Ex
Parte or for a Motion. [¶] No Opposition was submitted by moving party. [¶] Upon
finding out he would not be allowed to appear via Court Call, Court notes moving party
did not retain an appearance attorney to make the appearance and/or file an ex parte
application for him. [¶] Court notes the date of the motion hearing was 1-10-12 and
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today’s date is 3-28-12, therefore more than 78 days has passed since the hearing. [¶]
Judgment was signed on 1-30-12, 20 days after the hearing.”
III. EVIDENCE
Defendant purchased two separate adjoining parcels on Palm Street in April 2008.
The Palm Street property was located in a single-family residential area, zoned R-1, in
Altadena. Under Los Angeles County Planning and Zoning Code section 22.20.100, a
conditional use permit is required for operation of a school in zone R-1. The previous
owner of the Palm Street property had operated a children’s group home pursuant to a
conditional use permit. That conditional use permit allowed the property to be used as an
84-children group home for short term care of newborns and toddlers.
On May 28, 2008, defendant applied for a conditional use permit to operate an
800-student kindergarten through twelfth grade private school on the property. On
September 12, 2008, while defendant’s conditional use permit application was pending,
plaintiff received a public complaint about traffic and noise problems caused by
defendant’s school. On September 15, 2008, Amir Bashar, a zoning enforcement officer,
conducted an inspection of the Palm Street property. The school’s principal told Mr.
Bashar that the school had 240 students and 30 staff members.
On September 16, 2008, Mr. Bashar mailed a violation notice to defendant. On
September 23, 2008, plaintiff received a letter from Ara Assilian, chairperson of
defendant’s directors’ board. Mr. Assilian regretfully admitted defendant started the
school in September 2008 before obtaining a conditional use permit.
On September 29, 2008, defendant submitted a clean hands waiver application
pursuant to the Los Angeles Planning and Zoning Code section 22.04.110 which
provides: “No application for any permit required pursuant to this title shall be accepted
for processing or approved where an existing land use, not previously authorized by any
statute or ordinance, is being maintained or operated in violation of any applicable
provision of this title, or any condition of approval of a land use permit. . . . Where in his
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sole discretion the director, whose determination shall be final, determines that the use in
question is consistent with the objectives, goals and policies of the General Plan, or that
the continuation of said use is essential or desirable to the public convenience or welfare,
this provision shall not apply. (Ord. 89-0125 § 1, 1989; Ord. 86-0221 § 1, 1986.) ”
On October 14, 2008, plaintiff denied defendant’s clean hands waiver application.
Planning Director Bruce McClendon explained: “In considering your request, I must also
consider the possible impact the school may have on the community. While you have
filed a [conditional use permit] application to operate the school, the Department has not
reviewed or analyzed the application. While I understand the reasons for your request
and the hardship of discontinuing the operation of the school, I am also concerned with
the compatibility of this use with the residential character of the community and the fact
that the County has not conducted the required analysis or consideration of all possible
impacts, including, but not limited to traffic and noise.” On October 16, 2008, plaintiff
notified defendant of the final zoning enforcement order. On November 14, 2008,
defendant appealed the final zoning enforcement order. On December 8, 2008, the
appeal was denied because plaintiff continued to operate the school without a conditional
use permit. On May 20, 2010, defendant abandoned its conditional use permit
application. On November 16, 2010, the Palm Street property was sold to a third party.
Plaintiff submitted a declaration from Oscar Gomez, a supervising regional
planner, in support of its summary judgment motion. Mr. Gomez explained the clean
hands waiver applications were reviewed by zoning enforcement officers and submitted
to the planning department director for final determination. In assessing a clean hands
waiver application, the primary factor is the detrimental effect on the community. Out of
97 clean hands waiver applications, 63 were granted and 34 were denied. Of the 97
applications, 88 were from secular institutions or private individuals. Of those
applications, 57 were granted and 31 were denied.
Of the 97 applications, 9 were by religious institutions. Six applications were
granted and three were denied. The six waivers were granted because there was little or
no detrimental impact to the surrounding community. The waivers were approved based
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on these factors: the property was located along a major commercial street or road; the
property was not located in a residential community; and the use did not present a
significant expansion from and was substantially similar to the prior use of the property.
One of the six waiver approvals was for a Hindu temple which operated in a multi-family
residential/commercial area. The temple was located in a residential community.
However, in the case of the Hindu temple, the prior use of the property was as a union
meeting and assembly hall. Thus, the planning department found the Hindu temple
would have a similar impact on the community. In two instances, the clean hands waiver
were denied to two newly established churches in single-family residential
neighborhoods in a light agricultural zone. The planning department determined the
churches were not compatible with the residential character of the area and were not
desirable to the public convenience and welfare.
Defendant’s clean hands waiver application was denied because the expansion and
increased use of the Palm Street property required review through the conditional use
permit process. Additionally, the change in the use of the Palm Street property required
the California Environmental Quality Act review. The previous use of the Palm Street
property was for an 84-person children’s group home for short term care. In September
2008, defendant operated a school with 240 students. Also, the Palm Street property did
not have a sufficient area to accommodate the pick-up and drop-off of the students.
In addition, of the 57 clean hand waivers granted to nonreligious entities, only 1
was granted for a property in an R-1 zone for single family residences. That waiver was
granted to a 12-person sober living facility that later expanded to a 20-person adult
residential facility. The use of the property was substantially similar to the previous use.
Also, the structure used by the adult residential facility remained residential, consistent
with the character of the neighborhood. Furthermore, the traffic and noise generated by
the adult residential facility was not as intensive as the traffic flow generated by the 240-
student school.
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IV. DISCUSSION
A. Telephonic Appearance Request
Defendant argues it was error to deny the request of its counsel, Mr. Kahdeman,
for a telephonic appearance. As will be noted, Mr. Kahdeman never made any such
request. On January 5, 2012, Ms. Walters, Mr. Kahdeman’s assistant, contacted the clerk
to request permission for Mr. Kahdeman to appear telephonically. This was five days
before the January 10, 2012 summary judgment hearing. Defendant asserts the denial of
the request had the practical effect of denying defendant a full and fair hearing.
Defendant contends had its counsel appeared by telephone, he would have sought an ex
parte application to continue the hearing on plaintiff’s summary judgment motion. But
defendant could have filed the ex parte application in advance of the summary judgment
hearing. Mr. Kahdeman suffered a compound fracture of his left ankle on November 28,
2011, a month after plaintiff moved for summary judgment on October 27, 2011. Mr.
Pavlovic, plaintiff’s counsel, agreed to the continuance stipulation on November 29,
2011. But defense counsel did not draft the stipulation until January 7, 2012, three days
before the summary judgment hearing. In addition, Mr. Kahdeman did not heed Mr.
Pavlovic’s suggestion to file an ex parte application to continue the summary judgment
motion hearing with the trial court. Had Mr. Kahdeman promptly prepared the
stipulation, he could have filed an ex parte application to continue the summary judgment
motion hearing. The ex parte application could have been filed along with the
stipulation. Under California Rules of Court, rule 3.1207(4), an ex parte application
pursuant to stipulation does not require personal appearance by the parties. (Weil &
Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2013) §
9:157, ¶ 9:370.5, p. 9(I)-146 (rev. # 1, 2010).) Defendant knew it needed a continuance
more than a month in advance of the summary judgment hearing but did nothing.
Further, defendant, a large private school, made no effort to secure other counsel. There
is no evidence Mr. Kahdeman ever made any effort to hire another lawyer. Instead,
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improper ex-parte requests for judicial action were made by a non-lawyer, Ms. Walters,
at Mr. Kahdeman’s express direction. Moreover, there was no need to secure court
permission to appear by telephone. (Cal. Rules of Court, rule 3.670(c); Weil & Brown,
op. cit., ¶ 9:157, p. 9(I)-106 (rev. # 1, 2013).) The trial court was confronted with an
improper ex parte request by a non-lawyer to issue an unnecessary order and ethically
acted within its discretion in ruling as it did.
At argument, defendant argued there is evidence the trial court maintained an
illegal policy of prohibiting appearances by telephone. Defendant cites to Ms. Walter’s
declaration. According to Ms. Walters, the deputy clerk in Department P said the trial
court rarely allows for appearances by telephone in connection with motions. No doubt,
the trial court had the authority to require the parties to appear if the decision is made on
a case-by-case basis. (Cal. Rules of Court, rule 3.670(e)(2).) No such order was ever
issued in this case. Defendant failed to comply with the requirements for appearing via
telephone specified in California Rules of Court, rule 3.670(g). The only course of action
taken by Ms. Walters, a non-lawyer, was to make an improper ex parte request with no
notice to plaintiff’s counsel for permission to appear telephonically. Finally, we note the
trial court was entitled to reject defendant’s argument that no other lawyer could appear
to obtain the stipulated continuance. Defendant operated a large sophisticated school.
The trial court could reasonably rule that defendant could have hired other counsel to
secure the continuance.
B. Application for Order to Vacate Judgment
After the trial court granted the summary judgment motion, defendant sought
relief from the order and judgment. Code of Civil Procedure 1 section 473, subdivision
(b) provides in part: “The court may, upon any terms as may be just, relieve a party or
his or her legal representative from a judgment, dismissal, order, or other proceeding
1
All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
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taken against him or her through his or her mistake, inadvertence, surprise, or excusable
neglect. Application for this relief shall be accompanied by a copy of the answer or other
pleading proposed to be filed therein, otherwise the application shall not be granted, and
shall be made within a reasonable time, in no case exceeding six months, after the
judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other
requirements of this section, the court shall, whenever an application for relief is made no
more than six months after entry of judgment, is in proper form, and is accompanied by
an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or
neglect, vacate any (1) resulting default entered by the clerk against his or her client, and
which will result in entry of a default judgment, or (2) resulting default judgment or
dismissal entered against his or her client, unless the court finds that the default or
dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or
neglect. . . .” Because defendant seeks to set aside summary judgment, it is not entitled to
mandatory relief from judgment pursuant to section 473, subdivision (b). (Henderson v.
Pacific Gas and Electric Co. (2010) 187 Cal. App. 4th 215, 219; Huh v. Wang (2007) 158
Cal. App. 4th 1406, 1418; English v. IKON Business Solutions, Inc. (2001) 94 Cal. App. 4th
130, 148.)
Nor is defendant entitled to discretionary relief under section 473, subdivision (b)
which applies to a judgment or an order. (Zamora v. Clayborn Contracting Group, Inc.
(2002) 28 Cal. 4th 249, 254; Henderson, supra, 187 Cal.App.4th at p. 229.) The trial
court’s ruling is reviewed for an abuse of discretion. (Zamora v. Clayborn Contracting
Group, Inc., supra, 28 Cal.4th at p. 258; Huh v. Wang, supra, 158 Cal.App.4th at p. 1425;
Solv-All v. Superior Court (2005) 131 Cal. App. 4th 1003, 1007.)
We conclude defendant’s failure to attach a proposed summary judgment
opposition with its application warrants denial of the motion. Under section 473,
subdivision (b), defendant was required to submit its proposed opposition along with the
motion, “Application for this relief shall be accompanied by a copy of the answer or other
pleading proposed to be filed therein, otherwise the application shall not be granted. . . .”
Denial of the application was not an abuse of discretion because defendant failed to
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comply with the proposed pleading requirement. (County of Los Angeles v. Lewis (1918)
179 Cal. 398, 400; La Bonte & Ransom Co. v. Scellars (1928) 90 Cal. App. 183, 185;
Weil & Brown, op. cit., ¶ 5:385, p. 5-100 (rev .# 1, 2011).)
C. Summary Judgment
Defendant argues it was error to grant plaintiff’s unopposed summary judgment
motion. Defendant contends plaintiff’s denial of the clean hands waiver application
imposed a substantial burden on defendant’s religious exercise. Defendant asserts
summary judgment was improper because the trial court did not make any material fact
findings on the substantial burden issue. Defendant’s arguments are barred by the
doctrine of the law of the case.
Our Supreme Court has explained: “‘The decision of an appellate court, stating a
rule of law necessary to the decision of the case, conclusively establishes that rule and
makes it determinative of the rights of the same parties in a subsequent retrial or appeal in
the same case.’” (Morohoshi v. Pacific Home (2004) 34 Cal. 4th 482, 491; accord Kowis
v. Howard (1992) 3 Cal. 4th 888, 892-893.) Our Supreme Court has stated: “‘Generally,
the doctrine of law of the case does not extend to points of law which might have been
but were not presented and determined in the prior appeal. [Citation.] As an exception to
the general rule, the doctrine is . . . held applicable to questions not expressly decided but
implicitly decided because they were essential to the decision of the prior appeal.
[Citations.]’” (Olson v. Cory (1983) 35 Cal. 3d 390, 399; Estate of Horman (1971) 5
Cal. 3d 62, 73.) The law of the case doctrine is applicable even when the prior appellate
opinion is erroneous. (Morohoshi v. Pacific Home, supra, 34 Cal.4th at p. 491; People v.
Stanley (1995) 10 Cal. 4th 764, 786.)
In our prior opinion, we affirmed the trial court’s preliminary injunction order
enjoining defendant from using the premises until it secured a conditional use permit.
(County of Los Angeles v. Sahag-Mesrob Armenian Christian School, supra, 188
Cal.App.4th at p. 865.) We ruled plaintiff did not violate the Religious Land Use and
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Institutionalized Persons Act. (Id. at p. 863.) We explained: “Defendant was required to
secure a conditional use permit to operate the school. Defendant began operating the
school without the conditional use permit. The trial court found defendant failed to
secure the conditional use permit and, as a result, there was no violation of the act.
Requiring defendant to comply with a neutral conditional use permit application is not a
substantial burden on the practices of defendant’s religious practices within the meaning
of the act. No Supreme Court case holds the failure to comply with a neutral zoning
application process is a substantial burden on the exercise of religious freedoms. This is
entirely consistent with the joint managers’ statement of Senators Hatch and Kennedy.
[¶] The same is true of defendant’s clean hands waiver request. The denial of
defendant’s clean hands waiver request did not substantially burden its exercise of
religious practices within the meaning of the act. The denial of defendant’s clean hands
waiver application does not coerce it to conform to anybody’s religious belief.” (Ibid.)
Defendant’s contentions that the clean hands waiver denial imposed a substantial burden
on its religious exercise is barred by the law of the case doctrine.
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V. DISPOSTION
The summary judgment and related orders under review are affirmed. Plaintiff,
County of Los Angeles, is awarded its appeal costs from defendant, Sahag-Mesrob
Armenian Christian School.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
KRIEGLER, J.
O’NEILL, J.*
*
Judge of the Ventura County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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