Rutgard v. City of L.A. ( 2020 )

Filed 7/30/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
RICHARD PAUL RUTGARD, B297655
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BS170286)
v.
CITY OF LOS ANGELES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mitchell L. Beckloff, Judge. Affirmed.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy,
Chief Assistant City Attorney, Scott Marcus, Chief, Civil
Litigation Branch, Blithe S. Bock, Assistant City Attorney,
Michael M. Walsh, Deputy City Attorney, for Defendant and
Appellant.
Sullivan, Workman & Dee, Karyn A. M. Jakubowski, and
Charles D. Cummings, for Plaintiff and Respondent.
******
California’s Eminent Domain Law (Code Civ. Proc.,
§ 1230.010 et seq.)1 —and, in particular, Code of Civil Procedure
section 1245.245—provides that when “[p]roperty acquired by a
public entity [through eminent domain] . . . is not used for [its
intended] public use . . . within 10 years of adoption of the
resolution of necessity [that authorized its taking],” the entity
must allow the property’s original owner an opportunity to buy it
back “unless the [entity’s] governing body adopts” a new
“resolution” “reauthorizing the existing stated public use.”
(§ 1245.245, subds. (b), (f).) In this case, the City of Los Angeles
adopted an initial resolution in 2007 and a reauthorization
resolution in 2017.
This appeal presents four cascading questions:
First, does a public entity desiring to retain condemned
property under section 1245.245 have to “adopt” its initial and
reauthorization resolutions within 10 years of each other? We
hold the answer is “yes.”
Second, and if there is such a 10-year deadline, which
definition of “adoption” does section 1245.245 use—the date when
the resolutions are initially adopted, are finally adopted, or
become effective? We hold that section 1245.245 uses the date of
“final adoption.”
Third, which law governs the inquiry into whether a
resolution has been finally adopted—the local law governing the
public entity at issue, or a standardized definition imposed by
section 1245.245? We hold that local law fixes when a resolution
is “finally adopted.”
1 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2
Lastly, when are resolutions finally adopted under the local
law applicable here—namely, the city’s charter? We hold that a
resolution is “finally adopted” once the city council has enacted
the resolution and it has either been (1) approved by the mayor,
or (2) vetoed by the mayor, but overridden by the city council.
Because the city in this case finally adopted its initial and
reauthorization resolutions 19 days past the 10-year deadline,
section 1245.245 requires the city to offer to sell the property
back to its original owner. The trial court’s writ so ordering is
accordingly affirmed.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Property at issue
This case concerns a two-story building with 8,300 square
feet of commercial space (the Property). The Property is located
on Figueroa Street in the Highland Park neighborhood of the
City of Los Angeles (the City), and is registered as a City
Historical Monument. In early 2007, the Property was owned by
Richard Paul Rutgard (Rutgard).
B. 2007 Ordinance
On May 29, 2007, the Los Angeles City Council (the City
Council) enacted an ordinance “authorizing the condemnation” of
the Property (the 2007 Ordinance). The 2007 Ordinance
constituted a Resolution of Necessity declaring that the Property
was being “acquired for public purposes”—namely, to serve as a
“constituent service center” for City residents. The 2007
Ordinance passed by a two-thirds majority of the City Council.
On June 8, 2007, the Mayor of the City of Los Angeles (the
Mayor) “approved” the 2007 Ordinance.
3
The City calculated the effective date of the 2017
Ordinance to be July 24, 2007. An ordinance presumptively
becomes effective “31 days from its publication” (L.A. City
Charter, vol. I, art. II, § 252), and an ordinance is deemed
“published” if it is “posted . . . for at least ten days in three public
places” (L.A. Admin. Code, § 2.13). The 2017 Ordinance was
posted on June 14, 2007.
C. The interregnum period
On October 16, 2007, the City filed an eminent domain
lawsuit to condemn the Property. In November 2009, the City
and Rutgard settled the lawsuit and the City agreed to pay $2.5
million for the Property.
Due to the “economic downturn in 2008,” the City never
developed the Property into a constituent center.
D. 2017 Ordinance
On June 23, 2017, the City Council enacted an ordinance
“reauthoriz[ing]” the “use of the Property for a constituent service
center” (the 2017 Ordinance). The 2017 Ordinance passed by a
two-thirds majority of the City Council.
On June 27, 2017, the Mayor “approved” the 2017
Ordinance.
The City calculated two different effective dates for the
2017 Ordinance. The City initially calculated the effective date
to be August 7, 2017, based on a posting date of June 28, 2017,
which would constitute publication 10 days later and would
become effective 31 days after that. The very next day, however,
the City re-calculated the effective date to be July 9, 2017, based
(1) on a posting date of June 29, 2017, which would constitute
publication 10 days later, and (2) on a finding that the ordinance
should take “effect[] upon publication” under section 252 of the
4
city charter (thus bypassing the presumptive, 31-day waiting
period).
II. Procedural Background
On July 24, 2017, Rutgard filed a verified petition for a writ
of mandate alleging that the City had a “present legal duty” to
“offer [him] a right of first refusal to purchase” the Property
under section 1245.245 because its reauthorization of the 2007
taking was untimely.2 After the City filed an answer, after
briefing on the merits, and after a hearing, the trial court issued
a seven-page ruling granting Rutgard’s petition.
The trial court ruled that the City had a “clear, present,
ministerial duty to offer [Rutgard] the right of first refusal to
purchase the Property” under section 1245.245 because the 2017
Ordinance was not timely under that section. The court reasoned
that the City “adopted its initial resolution of necessity on May
29, 2007,” which was the day the City Council initially adopted
the resolution; that the City had “failed to use the Property as a
constituent service center”; and that all of the City’s acts to pass
a reauthorization resolution occurred in June 2017, which was
more than 10 years after May 29, 2007. The court rejected the
City’s argument that section 1245.245’s 10-year clock should not
begin to run until the date the 2007 Ordinance became effective
(that is, on July 24, 2007) because, in the court’s view, “[the]
language [of section 1245.245] could not be clearer: The 10-year
2 Rutgard also alleged a claim for declaratory relief, but
voluntarily dismissed that claim after the trial court granted his
writ petition.
Although Rutgard’s petition sought relief against the City
and the City Council, the City responded that the City Council is
“not a separate legal entity from the City” and the trial court
ultimately entered judgment against the City alone.
5
clock begins running on the date of adoption, not . . . the effective
date of the ordinance.” The court further found that section
1245.245’s legislative history was consistent with its text: Both
set the deadline for a new, reauthorization resolution as “within
10 years of the adoption of the [original] resolution of necessity”
(italics added).3
Following the entry of judgment and the issuance of a writ
of mandate, the City filed this timely appeal.
DISCUSSION
The City argues that the trial court erred in granting
Rutgard’s writ of mandate. A court may issue a writ of mandate
only if the petitioner establishes (1) “‘“a clear, present
. . . ministerial duty on the part of the respondent”’ [citations]”;
(2) “a correlative ‘“clear, present and beneficial right in the
petitioner to the performance of that duty”’ [citations]”; and (3)
“no ‘plain, speedy, and adequate’ alternative remedy exists
[citation].” (People v. Picklesimer (2010) 48 Cal. 4th 330, 340
(Picklesimer); People ex rel. Younger v. County of El Dorado
(1971) 5 Cal. 3d 480, 490-491 (Younger); see generally §§ 1085,
1086.) “A ministerial duty is an obligation to perform a specific
act in a manner prescribed by law whenever a given state of facts
exists, without regard to any personal judgment as to the
propriety of the act.” (Picklesimer, at p. 340.) A court may issue
a writ of mandate against a local entity such as a city (Younger,
at p. 491 [“[t]he writ will issue against a . . . city”]), and may do so
when a public entity fails to perform acts prescribed by our
3 The court also rejected the City’s argument that the 10-
year clock should not begin to run until the date the Property was
acquired by a public entity. The City does not press that
argument in this appeal.
6
state’s Eminent Domain Law (e.g., Inglewood Redevelopment
Agency v. Aklilu (2007) 153 Cal. App. 4th 1095, 1114). In
reviewing the trial court’s issuance of a writ of mandate in this
case, we are reviewing its interpretation of the Eminent Domain
Law and its application of that law to undisputed facts. Our
review of each is de novo (Union of Medical Marijuana Patients,
Inc. v. City of San Diego (2019) 7 Cal. 5th 1171, 1183; Professional
Engineers in California Government v. Kempton (2007) 40 Cal. 4th
1016, 1032), and we are accordingly not bound by either the trial
court’s ruling or its rationale (see Williams v. Superior Court
(2013) 221 Cal. App. 4th 1353, 1361).
Under our state’s Constitution, a public entity’s eminent
domain power authorizes the condemnation of private property
only if “the public interest and necessity” so “require” and the
property’s owner is “just[ly] compensat[ed]” for the taking. (Cal.
Const., art I, § 19; see also U.S. Const., 5th Amend; §§ 1240.010,
1240.030.) To exercise this power, the public entity must at the
outset “adopt[] a resolution of necessity” specifying, among other
things, “the public use for which the property is to be taken.”
(§§ 1240.040, 1245.230.)
To ensure that public entities do not use their eminent
domain power to acquire a property and then hold or “bank[]”
that property indefinitely without ever putting it to its intended
public use, our Legislature in 2006 enacted section 1245.245. In
pertinent part, subdivision (b) provides:
“Property acquired by a public entity . . . that is
. . . not used for the public use stated in the [original]
resolution of necessity within 10 years of the adoption
of th[at] resolution . . . shall be sold in accordance
with the terms of subdivision[] (f). . ., unless the
7
governing body adopts a resolution . . . reauthorizing
the existing stated public use of the property by a
vote of at least two-thirds of all members of the
governing body of the public entity or a greater vote
as required by statute, charter, or ordinance.”
(§ 1245.245, subd. (b)). Subdivision (f), in turn, provides in
pertinent part:
“If the public entity fails to adopt . . . a
reauthorization resolution . . ., and that property was
not used for the public use stated in [the property’s
original] resolution of necessity . . . between the time
of its acquisition and the time of the public entity’s
failure to adopt a [reauthorization] resolution . . ., the
public entity shall offer the person or persons from
whom the property was acquired the right of first
refusal to purchase the property . . . [a]t the present
market value.”
(§ 1245.245, subd. (f).)
On appeal, the City argues that it complied with section
1245.245’s mandate—and that the trial court erred in granting a
writ premised on the City’s noncompliance—because (1) section
1245.245 imposes no time limit whatsoever on the public entity’s
adoption of a reauthorization resolution (because, in the City’s
view, the statute’s 10-year deadline sets the time period during
which the public entity must fail to put the property to public use
and not the time period for enacting a reauthorization
resolution),4 and (2) even if section 1245.245 requires a public
4 Although the City raises this argument for the first time on
appeal, it turns entirely on a question of law (namely, statutory
8
entity to adopt a reauthorization resolution within 10 years of
adopting the original resolution, a resolution is “adopted” on the
date it becomes effective, and here the effective dates of the 2007
Ordinance and 2017 Ordinance are less than 10 years apart.5
The City’s two main arguments ultimately break down
into—and hence present—four questions: (1) Does section
1245.245 obligate a public entity to “adopt” a reauthorization
resolution within 10 years of adopting its original resolution?, (2)
If so, how does section 1245.245 define when a resolution is
“adopted”?, (3) Does section 1245.245 incorporate its own
definition of initial adoption, final adoption or effective date, or
does it instead look to local law to define those terms?, and (4)
How does the local law governing the City’s adoption of
resolutions define the relevant term?
interpretation) that we may, and in this case do, choose to
entertain. (People v. Runyan (2012) 54 Cal. 4th 849, 859, fn. 3.)
5 The City raises a third argument, but it is frivolous. The
City asserts that this case is inappropriate for a writ of mandate
because the adoption of a resolution of necessity is a
discretionary, quasi-legislative act and thus one that the City has
no ministerial duty to undertake, thereby negating one of the key
requirements for writ relief. (Picklesimer, supra, 48 Cal.4th at p.
340; Fullerton Joint Union High School Dist. v. State Bd. of
Education (1982) 32 Cal. 3d 779, 786 [“quasi-legislative decisions”
are reviewed solely for arbitrariness].) This assertion is frivolous
because Rutgard is not attacking the City’s discretionary decision
whether to adopt the reauthorization resolution, but is instead
seeking to enforce section 1245.245’s duty to make him a buy-
back offer, a duty that is mandated by statute once the statute’s
10-year deadline is blown. (§ 1245.245, subds. (b) & (f).)
9
I. Does Section 1245.245’s 10-Year Deadline Apply To
The Public Entity’s Duty To “Adopt” A Reauthorization
Resolution?
The City argues that section 1245.245 does not impose any
time limit on a public entity’s adoption of a reauthorization
resolution because the statute refers to “10 years” only when
defining how long the property has not been put to its designated
“public use” (in one clause of subdivision (b)) and not when it
refers to the adoption of a reauthorization resolution (elsewhere
in subdivision (b) or in subdivision (f)). The Legislature’s failure
to re-state the “10 year” limit when specifically discussing
reauthorization resolutions, the City reasons, means that there is
no time limit for those resolutions. We reject this argument.
Whether section 1245.245 requires the public entity to
adopt its reauthorization resolution within 10 years of adopting
its original resolution presents a question of statutory
interpretation. When interpreting a statute, “[o]ur fundamental
task . . . is to ascertain the Legislature’s intent so as to effectuate
the law’s purpose.” (People v. Mendoza (2000) 23 Cal. 4th 896,
907.) As noted above, the undisputed purpose of subdivisions (b)
and (f) of section 1245.245 is to foreclose public entities from
indefinitely retaining property that was acquired through
eminent domain but not put to public use, and the statute
achieves this purpose by giving public entities three options: Put
the property to public use within 10 years, adopt a new resolution
reauthorizing that use, or sell the property (with a right of first
refusal to the original owner). The only way to ensure that
section 1245.245 achieves its purpose is to require that the new,
reauthorization resolution be adopted within 10 years of the
original resolution. The contrary construction urged by the
10
City—namely, that section 1245.245 imposes no deadline for
adopting a reauthorization resolution—would allow public
entities to put off that task forever and, in so doing, allow them to
indefinitely retain condemned property without ever putting it to
public use, which is precisely the evil section 1245.245 was
intended to prevent. As between the construction of section
1245.245 that furthers its purpose and the one that undermines
it, we must go with the former. (Pineda v. Bank of America, N.A.
(2010) 50 Cal. 4th 1389, 1397; Diaz v. Grill Concepts Services, Inc.
(2018) 23 Cal. App. 5th 859, 875.)
The City resists this conclusion with what boils down to
three arguments. First, the City asserts its interpretation of
section 1245.245 is supported by one of the canons of statutory
construction—namely, that a legislature’s use of “different
language in statutory provisions addressing the same subject”
means that provisions with different language should have
different meanings. (E.g., People v. Trevino (2001) 26 Cal. 4th
237, 242.) Citing this canon, the City continues that our
Legislature did not intend to impose a 10-year deadline for a
reauthorization resolution because it included a 10-year deadline
in the clause of subdivision (b) addressing the failure to use the
property for public use but not the clause in subdivision (b)
addressing reauthorization resolutions or in subdivision (f), and
further distinguished the two acts of failing to use the property
versus adopting a reauthorization resolution—by using different
verb tenses (past versus present) when describing them. These
assertions ignore that the canons of statutory construction are
merely “‘guides to help courts determine likely legislative
intent.’” (Burris v. Superior Court (2005) 34 Cal. 4th 1012, 1017.)
Where, as here, our Legislature’s purpose is abundantly clear,
11
canons of construction must yield to that purpose; they certainly
cannot be used to undermine it. (Roberts v. United Healthcare
Services, Inc. (2016) 2 Cal. App. 5th 132, 146 [“Where . . . [a] canon
leads to a result at odds with the otherwise clearly expressed
legislative intent, the canon necessarily yields to that intent.”].)
Second, the City cites to a passage from the legislative
history of section 1245.245 indicating that the statute “would not
impose arbitrary or inflexible restrictions on public entities’
future land use decisions,” and on this basis contends that section
1245.245 should not be construed to require a public entity to
adopt a reauthorization resolution within 10 years because such
a fixed deadline would be arbitrary and inflexible. We reject this
contention for several reasons. To begin, the passage the City
cites does not refer to deadlines at all and appears instead to be
referring to section 1245.245’s flexibility in giving public entities
the option to choose whether to sell an acquired property or
instead to adopt a reauthorization resolution. More to the point,
this passage cannot justify a construction of section 1245.245—
that is, the absence of any deadline—that is wholly inconsistent
with our Legislature’s reason for enacting the statute in the first
place. Indeed, even the City acknowledges the need for some
deadline for a reauthorization resolution when it notes that, even
under its view, the 10-year mark would still be the “default”
deadline and the “natural trigger” for “taking up [a]
reauthorization resolution,” and even goes so far as to offer up its
prediction that the 10-year deadline would be met “in the normal
course of events.” Thus, the City seems to suggest that section
1245.245 should be read to impose a 10-year limit that is more of
a guide-line than a dead-line. But there is absolutely no basis for
12
fashioning such a “meet it if you feel like it” deadline—either
from the text or legislative history of section 1245.245.6
Lastly, the City argues that there is no reason to construe
section 1245.245 to impose a 10-year deadline for adopting a
reauthorization resolution because public entities could easily
subvert such a deadline by simply enacting a new resolution of
necessity. The City is wrong. To the extent the City is arguing
that a public entity can blow the 10-year deadline for a
reauthorization resolution but sidestep the consequences of doing
so under section 1245.245 by holding onto the property and
thereafter enacting a brand new, “original” resolution of necessity
subject to no time restrictions whatsoever, we reject this
argument. Because we read statutes “‘“with reference to the
entire scheme of law of which [they are a part] so that the whole
may be harmonized and retain effectiveness”’” (Horwich v.
Superior Court (1999) 21 Cal. 4th 272, 276 (Horwich)), we
necessarily read the eminent domain statutes to prevent this
type of gamesmanship because it would authorize an end-run
around section 1245.245’s 10-year deadline that would render its
provisions a complete nullity. (Williams v. Superior Court (1993)
5 Cal. 4th 337, 357 [“An interpretation that renders statutory
language a nullity is obviously to be avoided.”].) To the extent
the City is arguing that a public entity that blows the 10-year
deadline and sells the property has the power to thereafter
initiate an entirely new eminent domain proceeding with a new
6 Because section 1245.245’s 10-year fixed deadline also does
not depend on a public entity’s reasons for the delay in
development, the trial court properly sustained relevance
objections to the City’s evidence as to why it did not develop the
property between 2007 and 2017.
13
resolution of necessity to reacquire the property, this is true but
ignores that this alternative process entails substantial
transaction costs such as having to conduct a new valuation of
property and to engage in negotiations with the owner. (See
§ 1245.230, subd. (c)(4); Gov. Code, § 7267.2; see Joffe v. City of
Huntington Park (2011) 201 Cal. App. 4th 492, 504.) These costs
negate the very premise of the City’s argument that this process
would be an easy and viable substitute for a reauthorization
resolution.
II. How Does Section 1245.245 Define When Initial And
Reauthorization Resolutions Are “Adopted”?
Because section 1245.245, subdivision (b) requires a public
entity seeking to retain a property previously acquired by
eminent domain but not put to public use to “adopt[]” a resolution
reauthorizing that use “within 10 years of the adoption of [its
original] resolution of necessity” (§ 1245.245, subd. (b), italics
added), the next question is: How does section 1245.245 define
when a resolution is “adopted”? Section 1245.245 provides no
express definition. Where, as here, a public entity’s adoption of a
resolution of necessity requires some initial action by the entity’s
legislative body followed either by executive concurrence or a
legislative override, “adoption” could have one of three possible
meanings: (1) when the resolution is initially adopted by the
entity’s legislative body (but prior to completion of the additional
steps necessary to finally adopt the resolution), (2) when the
resolution is finally adopted through initial adoption followed by
executive concurrence or legislative override, or (3) when the
resolution becomes effective, which is typically after final adoption
followed by publication of the resolution. Choosing among these
three adoptions turns on two questions: (1) Does section
1245.245 look to a resolution’s “adoption” date or its “effective”
14
date?, and (2) If section 1245.245 looks to the “adoption” date,
does it look to the date a resolution is initially adopted or finally
adopted?
A. Adoption date versus effective date
As between the date that a public entity adopts a resolution
and the date that resolution becomes effective, section 1245.245
looks to the date of adoption. The date a resolution or any other
law is adopted and the date it becomes effective are separate
dates (Ross v. Board of Retirement of Alameda County Employees’
Retirement Assn. (1949) 92 Cal. App. 2d 188, 193 [“the date of
‘adoption’ or passage of an ordinance or statute is not the date the
enactment becomes . . . effective”]; Gleason v. Santa Monica
(1962) 207 Cal. App. 2d 458, 461 [same]), and section 1245.245
specifies that the relevant date is the date of adoption. We are
obligated to give effect to the statute’s plain text and may not
swap one term for the other. (Dyna-Med, Inc. v. Fair
Employment & Housing Com. (1987) 43 Cal. 3d 1379, 1386-1387
[courts “must look first to the words of the statute[]” itself];
California Teachers Assn. v. Governing Bd. of Rialto Unified
School Dist. (1997) 14 Cal. 4th 627, 633 [courts have “‘no power to
rewrite [a] statute’”].) Using the date a resolution is adopted
(rather than the date it becomes effective) is also more consistent
with the approach taken throughout the Eminent Domain Law.
(Horwich, supra, 21 Cal.4th at p. 276 [statute should be read
“‘“with reference to the entire scheme of law of which it is a
part”’”].) That is because the timing for a public entity’s eminent
domain proceeding and for a property owner’s inverse
condemnation action are also keyed to the date the public entity
“adopt[s]” the resolution of necessity, not the date that resolution
becomes effective. (§§ 1245.220 [date for eminent domain
15
proceeding], 1245.260 [date for inverse condemnation action].) In
all of these situations, the focus is on what the public entity has
done or not done; the effective date, by contrast, is typically keyed
to the subsequent, “ministerial act[]” of publication “for the
purpose of authenticating the [public entity’s] action . . ., and
giving notice of” that action (Pacific Palisades Asso. v.
Huntington Beach (1925) 196 Cal. 211, 221).
The City makes two arguments in favor of its view that
section 1245.245 looks to the effective date. First, the City cherry
picks passages from a handful of cases and statutes, each of
which can be read to equate a law’s adoption with its effective
date. (E.g., Modesto City Schools v. Education Audits Appeal
Panel (2004) 123 Cal. App. 4th 1365, 1375 (Modesto) [“‘adopt’
means . . . ‘to accept formally and put into effect’”], italics added;
Watsonville Pilots Assn. v. City of Watsonville (2010) 183
Cal. App. 4th 1059, 1072 (Watsonville) [same]; Health & Saf. Code,
§ 18906 [“‘adopt’ means, with respect to the procedure for
promulgation of a building standard, the final act of a state
agency”]; Civ. Code, § 1834.9, subd. (f)(9) [deferring to alternative
methods of animal testing if “adopted by” federal agencies and
defining “‘[a]dopted by a federal agency’” as “a final action taken
by an agency, published in the Federal Register, for public
notice”].) This authority is unhelpful. Not only do these cases
and statutes arise in wholly unrelated contexts, but they also do
not involve a choice between the date of a law’s adoption and the
law’s effective date (Modesto, at pp. 1374-1375 [school district did
not “adopt” valid independent study agreements because the
agreements it enacted did not contain the content required by
state law]; Watsonville, at pp. 1070-1072 [city did not “adopt”
valid airport land use commission because its city plan did not
16
contain the content required by state law]), and the two cases the
City cites merely parrot definitions plucked from a dictionary and
that are thus to be approached with “‘great caution’” (Stennett v.
Miller (2019) 34 Cal. App. 5th 284, 293, fn. 4; MacKinnon v. Truck
Ins. Exchange (2003) 31 Cal. 4th 635, 649). More to the point, the
City’s proffered authority in no sense overrides the considerations
we have found to be determinative with respect to section
1245.245—namely, our Legislature’s decision to use a resolution’s
date of “adoption” (rather than the “effective date”) as a common
point of reference throughout the Eminent Domain Law as well
as its decision to look to “adoption” date rather than “effective
date” (as opposed to equating the two concepts). (Cf. Modesto, at
p. 1377 [treating legislative intent of specific statute at issue as
dispositive].)
Second, the City argues that there are downsides to
defining section 1245.245’s 10-year clock by reference to the date
a resolution is adopted rather than its effective date because
doing so will likely leave a public entity with less than a full 10
years to develop the condemned property. Once a resolution is
finally adopted, a public entity may have to wait for it to become
effective (either under its charter or under the Elections Code
provisions applicable to non-charter cities that mandate a delay
of 30 days to allow for possible voter referenda (Elec. Code,
§§ 9235, 9237; see id. § 9247 [these provisions inapplicable to
charter cities and counties])). And a public entity will need to
start preparing a reauthorization resolution prior to the 10-year
deadline if it hopes to finally adopt that resolution before that
deadline. These are valid observations. But there are also
downsides to defining section 1245.245’s 10-year clock by
reference to the effective date of a resolution. Chief among them
17
is the potential for a public entity to manipulate that date by
advancing or delaying the date of publication (even within the
discretion legally granted to the entity under its governing law).
Indeed, the City in this very case calculated the effective date of
the 2017 Ordinance twice to select an effective date that it
believed would satisfy section 1245.245’s deadline. Given that
both options have what may be viewed as drawbacks, our
Legislature’s decision to use the adoption date of a resolution
rather than its effective date was not an absurd choice; absent
absurdity, we may not ignore section 1245.245’s plain text.
(People v. Broussard (1993) 5 Cal. 4th 1067, 1071.) If anything,
our Legislature’s decision to go with the date of “adoption”
dovetails perfectly with the maxim that favors construing
statutes in a manner that prevents “mischief” rather than
encouraging it. (Freedland v. Greco (1955) 45 Cal. 2d 462, 468.)
B. Initial adoption versus final adoption
As between the date that a public entity initially adopts a
resolution and the date it finally adopts it, section 1245.245 looks
to the date of final adoption. There is no distinction between
these dates when a public entity’s process of enacting a resolution
requires only the vote of the entity’s legislative body (as it does
for cities without charters) (Gov. Code, § 36936); as to such
entities, the date of initial adoption is also the date of final
adoption. But when a public entity’s process of enacting a
resolution requires the initial adoption by the entity’s legislative
body plus the concurrence of the entity’s executive or, failing that,
a second vote of the legislative body to override the executive’s
veto, the pertinent date under section 1245.245 is the date that
all the necessary steps for enactment are completed—that is, the
date of final adoption. That is because, as noted above, section
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1245.245 and the eminent domain statutes focus on when a
public entity acts (or fails to act). A public entity with a multi-
step enactment process has not acted until all of those steps are
completed; the initial adoption of a resolution by such an entity’s
legislative body is most certainly a step in that process (and,
indeed, often the biggest and most important step), but that step
is ineffectual by itself and may turn out to be wholly ineffectual if
the entity’s executive vetoes the initially adopted resolution and
the legislative body cannot or does not override that veto. We
divine no rational reason why our Legislature would peg the start
and end of its 10-year clock to a date corresponding to an
ineffectual, intermediary point in the more complex process of
enactment used by many public entities, and accordingly
conclude section 1245.245 looks to the date that a public entity
finally adopts its resolutions.
Rutgard offers one argument in favor of its view that
section 1245.245 looks to the date a resolution is initially
adopted. He argues that section 1245.245 focuses on when a
public entity’s “governing body” adopts a reauthorization
resolution (§ 1245.245, subd. (a), italics added); that the Eminent
Domain Law defines a public entity’s governing body as “the
legislative body of the local public entity” (§ 1245.210, subd. (a),
italics added); and that the “adoption of a resolution” under
section 1245.245 must therefore focus solely on when the
legislative body initially adopted the resolution. This text-based
argument overlooks that section 1245.245, subdivision (b),
expressly defers to whatever “greater vote” is “required by
statute, charter, or ordinance.” (§ 1245.245, subd. (b), italics
added.) Here, as discussed more fully below, the City’s charter
requires more than just a vote of the City Council before an
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ordinance is adopted: It requires a mayoral concurrence or,
failing that, a three-fourths override vote of the City Council.
III. To What Law Does Section 1245.245 Look In
Assessing Whether A Public Entity’s Resolutions Are
Finally Adopted?
Because section 1245.245 looks to the date of “final
adoption,” the next question becomes: Does section 1245.245
supply its own, standardized, one-size-fits-all definition of “final
adoption” or does it defer to however the law governing the public
entity at issue defines “final adoption”? We conclude that section
1245.245 incorporates the local law definition, and reach this
conclusion for two reasons.
First, section 1245.245 does not purport to define
“adoption” or, as we have construed that term, “final adoption,”
and we are loathe to fashion a uniform definition out of whole
cloth where our Legislature has declined to do so. (People ex rel.
Pierson v. Superior Court (2017) 7 Cal. App. 5th 402, 414
[declining to fill a gap when “the judiciary would be required to
fill [a] void out of whole cloth”]; see also, Freeman v. Wal-Mart
Stores, Inc. (2003) 111 Cal. App. 4th 660, 667 [“it is not for this
court to fill the statutory void”].)
Second, section 1245.245 elsewhere looks to local
“charter[s] or ordinance[s]” governing the process by which a
public entity’s governing body “adopts” resolutions (§§ 1240.040,
1245.245, subd. (b)). There is good reason to apply this same
approach of looking to local law to determine when a resolution is
“finally adopted.” The Eminent Domain Law applies to “public
entit[ies]” (§ 1245.220), and defines that term to apply broadly to
the “state” itself as well as any “county, city, district, public
authority, public agency, and any other political subdivision in
the state” (§ 1235.190). While some of these political subdivisions
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are subject to the general law of the state, cities with charters
(and, to a lesser extent, counties with charters) have “‘home rule’”
authority to opt out of the general law and follow their own law
as to the “‘municipal affairs’” governed by their charters. (First
Street Plaza Partners v. City of Los Angeles (1998) 65 Cal. App. 4th
650, 660 (First Street); State Building & Construction Trades
Council of California v. City of Vista (2012) 54 Cal. 4th 547, 556;
Cal. Const., art. XI, §§ 3, 5.) These municipal affairs include the
“structure and organiz[ation]” of a charter city’s “government”
(Dibb v. County of San Diego (1994) 8 Cal. 4th 1200, 1207), which
necessarily entails the process for enacting ordinances, including
resolutions of necessity. Because chartered public entities are
constitutionally empowered to “combine executive, legislative and
judicial functions in a manner different from the structure that
the California Constitution prescribes for state government”
(Lockyer v. City & County of San Francisco (2004) 33 Cal. 4th
1055, 1093, fn. 23; D’Amato v. Superior Court (2008) 167
Cal. App. 4th 861, 869), it makes sense to construe section
1245.245 in a way that acknowledges—rather than squelches—
this freedom to experiment.
IV. When Is A Resolution Finally Adopted Under The
Los Angeles City Charter?
Because we have concluded that section 1245.245’s 10-year
deadline looks to the date a public entity’s initial and
reauthorization resolutions are finally adopted and defers to the
definition of final adoption supplied by the law governing the
public entity at issue, the final question becomes: How does the
City define when a resolution is finally adopted?
The City is a charter city that has invoked its
constitutional “home rule” authority over municipal affairs. (L.A.
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City Charter (Charter), vol. I, art. I, § 101 [so declaring]; First
Street, supra, 65 Cal.App.4th at p. 661 [so noting].)
The City’s charter “vests” the City Council with “[a]ll
legislative power” to be “exercised by [enacting] ordinance[s],” but
makes that power “subject to the power of veto by the Mayor.”
(Charter, vol. I, art. II, § 240.) The Charter goes on to specify the
resulting “[p]rocedure for [a]doption of [o]rdinances” in a section
of the Charter so entitled. (Id., § 250.) The first step is for the
City Council to “pass[]” an ordinance. (Id., § 250, subd. (a).) The
next step is for the Mayor either (1) to “approv[e]” the ordinance,
by signing it or by taking no action for 10 days after the
ordinance is presented to him, or (2) to “veto” the ordinance. (Id.,
§ 250, subd. (b).) If the Mayor vetoes the ordinance, the final step
is for the City Council to override that veto with a greater vote
(two-thirds if a majority was required to pass the ordinance, and
three-fourths if two-thirds or more was required). (Id., § 250,
subd. (c).) The Charter elsewhere explains that an ordinance
that is “finally adopted” does not become “effective” until 31 days
after it is “publi[shed]” or posted for 10 days unless the ordinance
qualifies for immediate effectiveness. (Id., §§ 251-253; L.A.
Admin. Code, § 2.13.)
Under the City’s charter, an ordinance is “finally adopted”
once it has passed the City Council and either (1) been approved
by the Mayor or (2) if not approved, passed by a second, override
vote of the City Council. The Charter labels this entire process—
not just the first step of City Council initially passing the
ordinance—under the heading of “Procedure for Adoption of
Ordinances” (Charter, vol. I, art. II, § 250), and this heading is
entitled to “considerable weight.” (People v. Hull (1991) 1 Cal. 4th
266, 272 [“‘“section headings”’” “‘are entitled to considerable
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weight’” “‘“in determining legislative intent”’” (citation omitted)].)
What is more, an ordinance is finally adopted under the City’s
charter before it becomes effective. Section 251 of the Charter
explicitly distinguishes between the “final[] adopt[ion]” of an
ordinance and when it “take[s] effect.” (Charter, vol. I, art. II,
§ 251.) Indeed, our Supreme Court recognized as much when
interpreting a preceding version of the City’s charter that used
identical language. (Solomon v. Alexander (1911) 161 Cal. 23, 26
[“‘finally adopted’ . . . does not mean taking effect of the ordinance
by publication.”].) Nor is the distinction between an ordinance’s
adoption and its effective date unique to the City’s charter: Even
the general law applicable to non-charter cities (and that has no
mayoral component) draws a similar distinction between
adoption and effective date. (Compare Gov. Code, §§ 36936,
36933 [procedure for passage] with id. § 36937 [procedure for
effective date]; see generally, Fletcher v. Porter (1962) 203
Cal. App. 2d 313, 324 [general law provisions “apply to general law
cities only and do not regulate charter cities”].)
Rutgard argues that no matter what the Charter might say
about when an ordinance is “adopted” or “finally adopted,” the
City officials in this case treated the 2007 Ordinance as being
“adopted” on May 29, 2007, and were otherwise sloppy in
referring to when that ordinance was “passed,” “approved” or
“adopted.” In support of this argument, Rutgard points to a May
2015 motion by one member of the City Council referring to the
2007 Ordinance as being “approved” on May 27, 2007 (a date that
is, itself, off by two days); a subsequently prepared draft for the
2017 Ordinance refers to the 2007 Ordinance as being “approved”
on that date as well. This is irrelevant. A single Council member
does not purport to speak for the entire City (Myers v. Philip
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Morris Companies, Inc. (2002) 28 Cal. 4th 828, 845 [“single
legislator” does not “reflect . . . the views . . of the Legislature as a
whole”]), and even if he did, his misstatement or
misapprehension regarding when an ordinance is “finally
adopted” under the Charter does not somehow amend the
Charter in this regard. Nor do his statements create any
estoppel, as the City’s error was to its own detriment and
Rutgard has accordingly failed to allege or substantiate any
detrimental reliance. (Long Beach v. Mansell (1970) 3 Cal. 3d
462, 494; Penn-Co v. Board of Supervisors (1984) 158 Cal. App. 3d
1072, 1081.) The same is true for the imprecise language
regarding the 2007 Ordinance that is littered throughout the
administrative record.
V. Application
Under the law as we have construed it and the undisputed
facts, the 2017 Ordinance is not timely under section 1245.245.
The 2007 Ordinance was finally adopted on June 8, 2007, which
is the date that the Mayor approved the City Council-enacted
initial resolution of necessity for the Property. The 2017
ordinance was finally adopted on June 27, 2017, which is the date
that the Mayor approved the City Council-enacted
reauthorization resolution. Because the reauthorization
resolution was not “adopted” “within 10 years” of the initial
resolution, it is untimely and the City is statutorily obligated—by
section 1245.245, subdivisions (b) and (f)—to sell the Property
and to give Rutgard a right of first refusal in purchasing it.
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DISPOSITION
The judgment is affirmed. Rutgard is entitled to his costs
on appeal.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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