Forat v. City of Los Angeles CA2/2 ( 2023 )

Filed 6/14/23 Forat v. City of Los Angeles CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
BEHZAD FORAT et al., B313816
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BS163322)
v.
CITY OF LOS ANGELES et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James C. Chalfant and Robert S. Draper,
Judges. Affirmed.
Gaines & Stacey, Fred Gaines and Lisa A. Weinberg for
Plaintiffs and Appellants.
Hydee Feldstein Soto, City Attorney, Terry P. Kaufmann
Macias, Assistant City Attorney, Steven N. Blau and Morgan L.
Hector, Deputy City Attorneys, for Defendants and Respondents.
Behzad Forat and Studio City Car Wash, Inc. (SCCW)
(collectively appellant) appeal from a judgment entered after
appellant’s claims against respondents City of Los Angeles and
City Council of the City of Los Angeles (city council) (collectively
city) were dismissed following demurrer and summary judgment
proceedings. Appellant sought a writ of mandate pursuant to
Code of Civil Procedure section 1094.5 and made claims for
inverse condemnation (regulatory taking), promissory estoppel,
declaratory relief, violation of civil rights, and violation of the
Ralph M. Brown Act (Gov. Code, § 54950 et seq.) (Brown Act)1
against the city after the city rescinded its earlier action to
consider a general plan amendment (GPA) and zone change (ZC)
concerning property owned by appellant.
The trial court sustained without leave to amend the city’s
demurrer to the writ cause of action. Appellant’s fourth and sixth
causes of action were adjudicated in favor of the city following
trial.
Following reassignment of the matter to a general civil trial
court after adjudication of the writ and declaratory relief matters,
the trial court sustained demurrers to the estoppel and civil
rights claims without leave to amend. The court later granted
summary judgment in favor of the city on appellant’s remaining
claim for regulatory taking. The trial court awarded the city
$32,500 in attorney fees for appellant’s failure to properly admit
the truth of certain requests for admission.
Appellant contends that the trial court erred in failing to
compel the city to produce the transcript of its closed session to
1 All further statutory references are to the Government
Code unless otherwise noted.
2
the trial court for in camera review. Appellant further challenges
the judgments entered against him on all his claims against the
city and argues that the court erred in awarding attorney fees to
the city.
We find no error and affirm the judgment.
BACKGROUND
Appellant purchased three adjacent parcels of vacant
hillside land totaling about 19 acres off of Cahuenga Boulevard
adjacent to Lake Hollywood (property) in 2007.2 Each parcel was
zoned RE40 and subject to a minimum residential land use
designation under the city’s general plan, the Mulholland Scenic
Parkway Specific Plan, and Los Angeles Municipal Code section
12.21.C.8 and 10 (hillside regulations). These existing
regulations permit one-family dwellings, but not multiple
dwelling apartment complexes. Appellant understood before
purchasing the properties that all three were zoned RE40.
In 2014, appellant met with city Councilmember Tom
LaBonge, then the representative for the city’s Fourth Council
District, to discuss the use of Forat’s property located in that
district. Appellant sought a GPA and ZC in order to develop
multi-unit residences on the properties. After discussions held
over several months, appellant agreed to donate 10 acres of the
property to the city for parkland and trail usage if the city were
2 Forat is the president of SCCW. Forat acts on SCCW’s
behalf with regard to the two parcels owned by SCCW (Assessor
Parcel Nos. 5577-016-001 and 5577-016-006), and on his own
behalf for the third parcel owned by Forat personally (Assessor
Parcel No. 5577-016-002).
3
to permit appellant to build an apartment building on the
remaining acreage along Cahuenga Boulevard.
Following those discussions, on October 29, 2014,
Councilmember LaBonge presented a motion that the
“Department of General Services be instructed and authorized to
enter into negotiations with the current owner of the property in
order for the City to acquire the parcel for ultimate preservation
as public open space.” LaBonge further moved that the city
council “instruct the Planning Department, in consultation with
Council District 4, to initiate consideration of a General Plan
Amendment and Zone Change, and other City Planning
approvals if needed, including the preparation and adoption of
any required ordinance, to rezone Los Angeles County Assessor’s
Parcel No. 5577-016-006 as open space and Los Angeles County
Assessor’s Parcel Nos. 5577-016-001 and 5577-016-002 as R3.”3
On March 18, 2015, the city council adopted the motion “to
initiate consideration of a General Plan Amendment and Zone
Change, and other City Planning approvals if needed, including
the preparation and adoption of any required ordinance, to
rezone Los Angeles County Assessor’s Parcel Nos. 5577-016-001
3 A GPA and ZC may be initiated at the discretion of a
majority vote of the 15-member council or nine-member city
planning commission, or by the director of planning. A GPA is a
discretionary legislative act, which requires reports,
recommendations, public hearings and final adoption within the
legislative discretion of the city council by vote. Although
residents may not initiate a GPA, residents may request
initiation. A ZC similarly is a legislative action that requires
reports, recommendations, and public hearings, among other
things. The city retains full discretion to approve or deny land
use entitlements for property.
4
and 5577-016-002 as R3 and to rezone Los Angeles County
Assessor’s Parcel No. 5577-016-006 as open space should the City
ultimately acquire that parcel.”
For the next year both the city planning department and
appellant worked on entitlement studies, including a draft
environmental impact report (EIR) and traffic study.
On July 10, 2015, appellant submitted a master land use
application and environmental assessment form for 250
townhome apartments.
In July 2015, Councilmember David Ryu replaced
Councilmember LaBonge.
In October 2015, the Hollywood Hills West Neighborhood
Council (HHWN Council) sent a letter to Councilmember Ryu
requesting that the council rescind its March 2015 initiation.
The letter cited concerns that the project would be inappropriate
for the neighborhood and would have a negative impact on traffic,
infrastructure, and wildlife corridors.
On March 22, 2016, Councilmember Ryu presented a
rescission motion for the city council to consider as a means of
rescinding its initiation, citing the HHWN Council’s letter. The
rescission motion was scheduled for hearing on March 29, 2016.
Following receipt of two letters from appellant’s counsel outlining
appellant’s opposition to the motion, the hearing was moved to
April 1, 2016.
One of the letters, dated March 28, 2016, threatened
litigation if the council rescinded the initiation. The letter
indicated that appellant had incurred “over $300,000 in out of
pocket expenses . . . in reliance on the City’s prior action,” and
thus requested that the city allow the application to proceed to
hearing and decision. The letter specified that “[t]he termination
5
of the current application process will cause our client to suffer
immediate monetary damages. Our client will seek to be
reimbursed by the City for all such damages.” The second letter,
dated March 31, 2016, suggested “compromise proposals” so that
appellant’s “$300,000 investment will not go to waste.” The letter
reiterated that appellant would “suffer immediate monetary
damages” if the application process were terminated and would
“have no choice but to seek to be reimbursed by the City for all
such damages.”
At the April 1, 2016 city council meeting, members of the
public spoke against the project. Following eight minutes of
public comment, the city council called a closed session pursuant
to section 54956.9, subdivisions (d)(2) and (e)(5) in order to confer
with legal counsel concerning “significant exposure to, and threat
of, litigation.” (Boldface omitted.) The closed session lasted
nearly 90 minutes. Following the closed session, the city council
convened in open session. Members of the public spoke further
against the proceeding. Forat and his attorney also provided
testimony during the process.
Following the proceedings the council voted in open session
to adopt the rescission motion.
On April 19, 2016, a letter was sent by appellant to the city
council alleging that the April 1, 2016 closed session violated the
Brown Act. Appellant “demand[ed] that the City Council cure
and correct the illegally taken action by formally and explicitly
withdrawing its April 1, 2016 Motion and conducting a new
hearing on the Motion at which all Council discussion on the
matter is made in public and all prior communications among the
Councilmembers . . . are fully disclosed . . . .” The letter
threatened to “seek a judicial invalidation of the challenged
6
action,” plus attorney fees, if the city council failed to cure the
alleged violation.
On May 10, 2016, the city attorney responded to appellant’s
letter. Without admitting that a Brown Act violation occurred, in
the interest of avoiding litigation, the city attorney informed
appellant that the city placed on the May 13, 2016 agenda a
motion to rescind the action of April 1, 2016. If the action were
rescinded, the city council would then reconsider its rescission of
the March 2015 action concerning the rezoning of appellant’s
parcels.
On May 13, 2016, the city council held a public hearing on
Councilmember Ryu’s two consecutive motions. The motion to
rescind the city’s April 1, 2016 rescission motion passed 11-0.
The council thereafter voted again to rescind its March 2015
action.
On May 17, 2016, appellant sent a letter to the city council
stating that the actions taken on May 13, 2016, by the city
council did not cure or correct the original Brown Act violation,
but exacerbated it. The letter noted that the council limited
public comment to two minutes per speaker, “effectively
eliminating meaningful public comment.” Appellant noted that
to cure and correct the Brown Act violation, the council would
have to conduct a new hearing at which all council discussion was
made public, including all prior communications among the
council members. Appellant warned that inaction may leave
appellant with no choice but to initiate judicial action.
On June 15, the city attorney responded that “the Brown
Act patently was not violated on May 13, 2016,” and the council
would “take no further ‘curative’ action on this matter.”
7
PROCEDURAL HISTORY
Appellant filed a verified petition for writ of mandate and
complaint against the city on June 28, 2016. Appellant asserted
five causes of action: (1) writ of mandate pursuant to Code of
Civil Procedure section 1094.5, seeking an order requiring the
city to set aside the April 1, 2016 recission motion and the
May 13, 2016 rescission motion and ordering the city to complete
the process approved in the March 2015 action; (2) inverse
condemnation—regulatory and physical taking; (3) promissory
estoppel seeking an order estopping the city from rescinding the
March 2015 action and requiring it to complete the process
approved in the March 2015 action; (4) declaratory relief as to
whether the city had the right to rescind the March 2015 action
or was required to move forward with it; (5) violation of
appellant’s civil rights, including substantive and procedural due
process rights; and (6) violation of the Brown Act.
The city’s first demurrer
On September 15, 2016, the city filed a demurrer to all six
claims. On the same date, the court ordered the second, third
and fifth causes of action in the petition stayed pending
resolution of the remaining causes of action. The demurrer was
ordered to proceed on the first, fourth, and sixth causes of action
only.
The court sustained the demurrer without leave to amend
as to the first cause of action for writ of mandamus. The court
noted that the city’s actions were not subject to administrative
mandamus, nor did appellant present facts that established a
vested right to compel the city to take certain action.
The demurrer was overruled as to the fourth and sixth
causes of action.
8
Discovery
Appellant served requests for production of documents on
the city and city council seeking two categories of documents: (1)
all recordings of the closed session conducted on April 1, 2016;
and (2) all notes, minutes, transcripts or other documents
relating to the discussion in the closed session on April 1, 2016.
The city objected, citing the attorney-client privilege.
Appellant brought a motion to compel, which the city opposed.
The trial court denied the motion to compel, observing that it
could not “order disclosure of attorney-client privileged
communications, or even review documents in camera in order to
evaluate the claim of privilege unless the privileged documents
are voluntarily produced.” The court cited Evidence Code section
915, subdivision (a). However, the court ordered a privilege log
for the April 1, 2016 closed session and the production of, and
privilege log for, any redacted minutes. At the hearing, the court
asked that the city “be fairly specific . . . in the topics that are
being discussed as to why they are privileged or not in your
privilege log.”
On December 30, 2016, the city produced a 10-page
privilege log, which showed every page of the 95-page transcript
discussed threatened litigation, and claimed both attorney-client
privilege and privilege pursuant to section 54956.9.
In April 2017, appellant brought a second motion to compel
further responses to the request for production of documents.
The city opposed the motion. On May 9, 2017, the court adopted
its tentative decision denying the motion, having found that the
city’s privilege log was noncompliant with its order, as the city
provided a single sentence to describe the subject matter
discussed for every topic. The court had instructed the city to
9
provide more specificity so that the court could evaluate whether
the topics were privileged. Despite the lack of compliance, the
court denied appellant’s motion, noting that appellant was not
entitled to any portion of the minutes or transcript from the
closed session. The court stated its position that appellant
needed to show good cause for the court to review the minutes in
camera.
Appellant then brought a third motion to compel, asking
the court to compel production of the closed session transcript
and a detailed privilege log for in camera review. The city
opposed the motion. After a hearing on September 12, 2017, the
court granted appellant’s motion, finding the city had not
complied with its prior order and ordering the city to provide a
more detailed privilege log.
On November 3, 2017, the city filed its privilege log and a
declaration from Deputy City Attorney Strefan Fauble, who was
present at the April 1, 2016 closed session and attested that only
privileged communications concerning the threatened litigation
were discussed at that time. The trial court ordered the city to
produce a declaration from Fauble, as to whether certain
categories of discussions took place in the closed session, and a
revised privilege log providing such additional detail.
On January 16, 2018, the city filed a revised privilege log
with a further declaration of Fauble that confirmed all
discussions were “in response to the threatened litigation,” and at
no point in the closed session did any council member agree or
commit or direct other council members as to how to vote.
Appellant filed a final motion to compel in March 2018,
asserting that the Fauble declaration showed that many portions
of the April 1, 2016 transcript were not privileged and asked that
10
the court order the city to produce a transcript of portions of the
closed session for in camera review. Appellant also sought
sanctions. The city opposed the motion.
On April 17, 2018, the trial court heard and decided
appellant’s motion. The court denied the motion for in camera
review of any portion of the closed session transcript. It found
the Fauble declaration and log were sufficient for the trial court
to find that the entire closed session transcript was subject to the
attorney-client privilege and therefore was not subject to in
camera review by the court.
Writ trial—Brown Act and declaratory relief causes of
action
The parties briefed the fourth and sixth causes of action for
declaratory relief and violation of the Brown Act. Following the
May 28, 2019 trial, the trial court issued a written decision
denying both claims. The court reiterated that appellant had not
shown a violation of the Brown Act and found that appellant was
not entitled to set aside the April 1 or May 13, 2016 actions of the
city council. The trial court lifted the stay on the second, third
and fifth causes of action.
The damages portion of the case was reassigned to a
general civil trial court.
The city’s second demurrer
The city filed an amended demurrer to appellant’s second
(takings), third (promissory estoppel), and fifth (civil rights/due
process) causes of action. On December 10, 2019, the trial court
sustained with leave to amend the city’s demurrers to the third
and fifth causes of action and overruled, in part, the demurrer to
the takings claim. Specifically, the demurrer to the takings claim
was overruled as to the $400,000 in investments appellant made
11
in experts and environmental review, but was sustained as to the
loss of appellant’s alleged $30 million sale price.
On December 20, 2019, appellant filed a first amended
petition and complaint (FAPC).
The city’s third demurrer
On February 19, 2020, the city again demurred to the
second, third, and fifth causes of action. Following briefing, the
trial court sustained without leave to amend appellant’s third
cause of action for promissory estoppel and fifth cause of action
for violation of due process.
As to the third cause of action for promissory estoppel, the
court found appellant failed to allege an actionable promise. As
to the fifth cause of action (violation of due process), the trial
court found appellant had failed to allege a protected property
interest for the due process claim.
The court overruled the city’s demurrer as to the second
cause of action for inverse condemnation/takings, noting that the
FAPC alleged that appellant had been called upon to sacrifice all
economically beneficial uses of the property and that the city
refused to consider alternatives. In sum, the allegations were
that the city “effectively rejected all development proposals on
[appellant’s] property.” The court noted that it was required to
accept these allegations as true.
On July 14, 2020, the city filed its answer to the regulatory
takings claim.
The city’s summary judgment motion
On November 4, 2020, the city moved for summary
judgment on appellant’s takings claim, arguing that the claim
was not ripe because appellant never received a final and
authoritative determination of the type and intensity of
12
development legally permitted on the property. Appellant
opposed the motion, arguing that there were disputed issues of
material fact as to whether the city would not allow development
of the property with a use that is “physically and financially
feasible.”
Following argument at the February 9, 2021 hearing, the
court adopted its tentative ruling as the final ruling of the court.
Summary judgment was granted, as the court found appellant
had failed to show an issue of material fact precluding summary
judgment on the ripeness issue. The court noted that the city
presented evidence that appellant had not attempted to develop
the property under its current zoning rules or any other allowed
use under existing regulations. Further, the city had made no
final decision as to the nature and scope of development that
would be allowed. The court found that appellant’s claim could
not be ripe until appellant “attempts development and is
prohibited from developing.”
Judgment and attorney fees
On April 26, 2021, the trial court entered judgment for the
city.
On May 6, 2021, the city filed a motion for an award of
attorney fees of $91,550 for appellant’s failure to admit the truth
of matters in response to requests for admission pursuant to Code
of Civil Procedure section 2033.420. The city argued that
appellant’s refusal to admit the truth of matters of substantial
importance to the disposition of the case was without reasonable
basis. Appellant opposed the motion. On August 9, 2021, the
trial court granted the city’s attorney fees in the amount of
$32,500, finding that the city was entitled to attorney fees under
Code of Civil Procedure section 2033.420 based on appellant’s
13
failure to admit that the city had not made it impossible to
develop the parcels of land or to undertake development of any
kind.
On October 31, 2021, the trial court entered an amended
judgment to include the fee award plus an additional $10,424.94
in costs.
Appeal
On June 28, 2021, appellant filed a notice of appeal from
the judgment of dismissal following the summary judgment
motion. On December 1, 2021, appellant filed a motion in this
court seeking to include the amended judgment entered after the
original appeal was filed. The city did not oppose the motion, and
on December 14, 2021, this court granted appellant’s request that
the appeal encompass the amended judgment including the
award of attorney fees.
DISCUSSION
Appellant challenges the trial court’s decision failing to
compel the city to produce the transcript of its closed session to
the trial court for in camera review. Appellant also contests the
trial court’s decisions on all three of appellant’s damages claims,
as well as the trial court’s decision to sustain the demurrer to the
writ cause of action without leave to amend. Appellant further
argues that the award of attorney fees to the city was erroneous.
We discuss the issues in the same order as they are
presented in the parties’ briefs.
I. Discovery orders denying appellant’s motions to
compel
Appellant first argues that the trial court erred in failing to
compel the city to produce the transcript of its April 1, 2016
14
closed session for in camera review. During discovery, appellant
sought to have the city produce the transcript of the hearing for
the trial court to review and make an initial determination of
whether the Brown Act was violated. Appellant argues that the
trial court erred as a matter of law by concluding that the entire
closed session was privileged and that it had no authority to
review the transcript.
As set forth below, we conclude that the trial court did not
err in that hearing.
A. Standard of review
Generally, we review discovery orders for abuse of
discretion. (Bank of America, N.A. v. Superior Court (2013) 212
Cal.App.4th 1076, 1089.) “‘The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of
reason. When two or more inferences can reasonably be deduced
from the facts, the reviewing court has no authority to substitute
its decision for that of the trial court.’” (Ibid.)
Statutory interpretation to determine the meaning of the
Brown Act presents a question of law subject to independent
review. (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th
904, 912 (Shapiro).) When the issue on appeal is whether actions
taken violated the Brown Act, review is de novo. (Furtado v.
Sierra Community College (1998) 68 Cal.App.4th 876, 880.) In
Furtado, the plaintiff argued that the Brown Act had been
violated because her employer’s board met in closed session
rather than open public meeting when it voted not to renew her
contract. (Ibid.) The parties disagreed over the meaning of an
exception to the open meeting requirements for discussion of
certain personnel issues. In resolving the issue, the trial court
analyzed the statutory language. (Id. at pp. 881-883.)
15
To the extent that our review involves analysis of statutory
language, or a determination of whether the city’s actions
violated the Brown Act, we apply the de novo review standard.
We review any factual questions for substantial evidence.
(Taxpayers for Livable Communities v. City of Malibu (2005) 126
Cal.App.4th 1123, 1126.) However, in assessing the trial court’s
denial of appellant’s motions to compel, we apply the abuse of
discretion standard.
B. Overview of relevant provisions of the Brown Act
The Brown Act is designed to “ensure the public’s right to
attend the meetings of public agencies” and “to facilitate public
participation in all phases of government decision making.”
(International Longshoremen’s & Warehousemen’s Union v. Los
Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 293.)
“It is the intent of the law that [public agencies’] actions be taken
openly and that their deliberations be conducted openly.”
(§ 54950.)
The Brown Act sets forth specific requirements regarding
the notice and conduct of any public body. For example, at least
72 hours before each meeting, a legislative body must post an
agenda containing a brief general description of each item of
business to be transacted or discussed, including items to be
discussed in closed session. (Shapiro, supra, 96 Cal.App.4th at
p. 919.) In a properly noticed closed session, the legislative body
may only consider those matters covered in the statement of
items to be considered in that closed session. (Id. at p. 922.) The
legislative body must publicly report any action taken in closed
session and the vote or abstention of every member present.
(§ 54957.1, subd. (a).) Generally, “[s]tatutory exceptions
authorizing closed sessions of legislative bodies are construed
16
narrowly and the Brown Act ‘sunshine law’ is construed liberally
in favor of openness in conducting public business.” (Shapiro,
supra, 96 Cal.App.4th at p. 917.)
The Brown Act preserves a city’s right to confer with
counsel regarding threatened litigation. Section 54956.9,
subdivision (a), provides: “Nothing in this chapter shall be
construed to prevent a legislative body of a local agency, based on
advice of its legal counsel, from holding a closed session to confer
with, or receive advice from, its legal counsel regarding pending
litigation . . . .” The term “pending litigation” includes
circumstances where there is a “significant exposure to litigation
against the local agency” (§ 54956.9, subd. (d)(2)) or the agency
has received “written communication from a potential plaintiff
threatening litigation” (§ 54956.9, subd. (e)(3)). As the Supreme
Court has noted, the Brown Act broadly preserves the attorney-
client privilege for local governing bodies. (Roberts v. City of
Palmdale (1993) 5 Cal.4th 363, 373.) There is a recognition that
“public entities need confidential legal advice to the same extent
as do private clients.” (Id. at p. 374.) Thus, the Attorney General
has interpreted section 54956.9 to permit “individual members of
a legislative body not only to deliberate and exchange opinions
with counsel but also among themselves in the presence of
counsel.” (75 Ops.Cal.Atty.Gen. 14, 18 (1992).) The Brown Act
thus “recognizes the need at times to both deliberate and act in
private when necessary.” (Id. at p. 20.) However, the purpose of
section 54956.9 is “‘to permit the body to receive legal advice and
make litigation decisions only; it is not to be used as a subterfuge
to reach nonlitigation oriented policy decisions.’” (Trancas
Property Owners Assn. v. City of Malibu (2006) 138 Cal.App.4th
172, 186 (Trancas).)
17
C. The trial court did not err in denying motions to
compel
1. The court was not required to conduct in
camera review
Appellant alleged that the city council violated the Brown
Act by discussing the merits of the pending motion to rescind its
prior act in the closed session and that commitments or
agreements regarding voting were made by the councilmembers
present in the closed session. As a result, appellant sought to
have the trial court order the city to produce the transcript of the
closed session for in camera review, in order for the court to make
an initial determination as to whether the Brown Act was
violated.
Appellant cites section 54957.2, subdivision (a), arguing
that this provision provides that the closed session minutes and
recordings must be made available when there is a mere
allegation that the Brown Act has been violated. We disagree.
Section 54957.2 provides for in camera review of a legislative
body’s minute book relative to closed meetings held under section
54957, which relates to closed sessions involving security threats
or employment matters. Section 54957.2 does not mandate
disclosure of attorney-client privileged matter to a court upon the
mere allegation of a Brown Act violation.
Section 54960, which is applicable to a potential violation of
section 54956.9, provides that a party seeking discovery or
disclosure of a recording of a closed session “shall file a written
notice of motion with the appropriate court.” (§ 54960, subd.
(c)(2)(A).) Upon reviewing the motion, if the court “finds that
there is good cause to believe that a violation has occurred, the
court may review, in camera, the recording of that portion of the
18
closed session alleged to have violated the act.” (§ 54960, subd.
(c)(3), italics added.) Thus, in camera review is discretionary and
is only permitted where there is good cause to believe a violation
has occurred. Section 54960, subdivision (c)(5), mandates that
“[t]his section shall not permit discovery of communications that
are protected by the attorney-client privilege.” Thus, we reject
appellant’s argument that in camera review was mandatory in
this matter.
Appellant relies on two cases to illustrate the position that
in camera review was required in this matter. We find both are
distinguishable. Shapiro, supra, 96 Cal.App.4th 904, involved
closed session discussions with real estate negotiators, authorized
under section 54956.8, regarding the building of a baseball
ballpark in San Diego. The plaintiff brought the action for
declaratory and injunctive relief to require “fuller disclosure of
the items under discussion in the context of real estate
negotiations involving the overall large redevelopment project.”
(Shapiro, at p. 906.) The San Diego City Council had posted
agendas for 16 closed sessions from January through
October 1999 with only a single, broad description for each entire
meeting. The descriptions did not reference specific parcels of
property or specific transactions. The plaintiff alleged that the
closed session meetings included substantive discussions that
went well beyond the scope of the agenda items noted.
Declaratory and injunctive relief was sought on the ground that
the public had a right to know what was going on in the closed
sessions and the city council was not complying with its
obligations under the Brown Act. (Shapiro, at p. 908.) The city
council in that matter did not assert attorney-client privilege as
to any portion of the meetings. Under those circumstances, the
19
trial court conducted an in camera review of the confidential
minutes of the closed sessions to determine whether the business
conducted during the closed sessions had been properly noticed.
(Shapiro, at p. 908.) Following its review, the trial court
concluded that the city council had violated both the letter and
the spirit of the Brown Act. (Ibid.) The Shapiro court affirmed.
(Id. at p. 925.) Shapiro does not suggest that in camera review is
necessary where a public entity claims attorney-client privilege
in connection with a closed session to address the issue of
threatened litigation.
Appellant also cites Los Angeles Times Communications v.
Los Angeles County Bd. of Supervisors (2003) 112 Cal.App.4th
1313 (LA Times). In LA Times, the plaintiffs alleged numerous
violations of the Brown Act, including secret directions and
telephone calls regarding whether to place a certain measure on
the ballot. (LA Times, at p. 1320.) The board contended that its
actions were in full compliance with the Brown Act. “To support
its contentions, the Board filed under seal numerous documents
that it believed were privileged, asking the trial court to review
them.” (LA Times, at p. 1320.) Thus, the public agency itself
requested the in camera review. On appeal, the matter involved
attorney fees, thus the in camera review of documents was not
discussed further. The case is unhelpful to appellant here.
Appellant argues that the trial court erred by relying on
Evidence Code section 915, subdivision (a) to determine that it
was not permitted to require disclosure of information claimed to
be privileged in order to rule on the claim of privilege.4 Appellant
4 Evidence Code section 915, subdivision (a) provides, in
part, that a court “may not require disclosure of information
20
points out that Government Code section 54956.9, subdivision (b)
provides: “For purposes of this chapter, all expressions of the
lawyer-client privilege other than those provided in this section
are hereby abrogated. This section is the exclusive expression of
the lawyer-client privilege for purposes of conducting closed-
session meetings pursuant to this chapter.” Based on this
language, appellant argues that Evidence Code section 915,
subdivision (b)’s prohibition of court review of information to
determine whether it is privileged does not apply here.
The trial court was correct in concluding that a court “‘may
not require disclosure of information claimed to be privileged . . .
in order to rule on the claim of privilege . . . .’” (Costco Wholesale
Corp. v. Superior Court (2009) 47 Cal.4th 725, 736 (Costco),
quoting Evid. Code, § 915, subd. (a).) The Costco court discussed
various facts that a court may evaluate to determine whether the
attorney-client privilege applies, such as whether the privilege is
held by the party asserting it, whether the attorney-client
relationship existed at the time the communication was made,
and whether the client intended the communication to be
confidential. (Costco, at p. 737.) Thus, while a litigant may have
to reveal some information to determine the applicability of the
privilege, “it does not follow that courts are free to ignore the
section’s prohibition and demand in camera disclosure of the
allegedly privileged information itself for this purpose.” (Ibid.)
We reject appellant’s suggestion that Government Code
section 54956.9, subdivision (b) renders Evidence Code section
915 inapplicable. While section 54956.9, subdivision (b) provides
claimed to be privileged . . . in order to rule on the claim of
privilege.”
21
the “exclusive expression of the lawyer-client privilege for
purposes of conducting closed-session meetings,” this provision
does not purport to curtail the substantive scope of the
privilege—or, more to the point, the procedural mechanism for
evaluating whether the privilege applies—in any way. Nor does
appellant cite any authority so holding. Thus, we conclude the
trial court properly followed the mandate set forth in Evidence
Code section 915, subdivision (b), preventing it from demanding
disclosure of the allegedly privileged meeting recording in order
to evaluate the city’s claim of privilege. At oral argument,
appellant argued that the fact that the Brown Act authorizes, as
a remedy, the recording of future closed meetings necessarily
means that trial courts in those future cases would be able to
review those recordings in camera. We disagree, as the remedy of
recording just means that a verbatim record of the closed meeting
will be available if and only if the trial court in that future case
determines there is good cause to believe a violation has occurred
and, consistent with Evidence Code section 915, that the closed
session, or relevant portion thereof, was not privileged. (Gov.
Code, § 54960, subds. (b), (c).)
Roberts v. City of Palmdale, supra, 5 Cal.4th 363 supports
this conclusion. In Roberts, a citizen demanded a copy of a letter
written from the city attorney to the city council regarding the
council’s approval of a parcel map application. (Id. at p. 368.)
The Roberts court held that the letter was protected by the
attorney-client privilege in spite of the broad policy of the Brown
Act, concluding that the Brown Act “broadly preserv[es] the
attorney-client privilege for local governing bodies.” (Roberts, at
p. 373.)
22
2. The court did not abuse its discretion in
declining to compel disclosure of any portion of
the closed session
Appellant cites portions of the Fauble declaration,
contending that these portions of the privilege log show that the
city strayed from the subject of threatened litigation, in violation
of Trancas, supra, 138 Cal.App.4th at page 186. In particular,
appellant cites language in which Fauble states that “City
Council members discussed with counsel and deliberated in
relation to the closed-session matter before Council, the legality
of deferring to, and whether and to what degree it was prudent to
defer to, assessments of a City Council member who claimed and
explained the basis of his purported greater knowledge and
expertise with the matter before Council.” The quoted portion
includes discussions with counsel on the legality and prudence of
certain actions.5 The trial court did not abuse its discretion in
determining that such discussions were privileged. The court’s
ruling shows a well-reasoned approach, taking into consideration
the context in which the discussions took place. The court
concluded that the discussion concerning deferring to a certain
councilmember, in this context, was a legal issue. The court
further concluded that “the legality and prudence of deference
5 Appellant insists that the quoted language is an admission
that “the City Council discussed whether its members should
vote in accordance with Councilman Ryu’s wishes on the
rescission motion since the property lies within his district . . . .”
Nothing in the quoted language suggests this interpretation. In
fact, the Fauble declaration confirmed that at no point in the
closed session did any council member agree as to how to vote,
promise or commit to vote a certain way, or direct other council
members as to how they should vote.
23
were intertwined.” The court’s conclusion that the matter was
privileged in this context was reasonable and well within the
court’s discretion.
Appellant sets forth 14 separate portions of the Fauble
declaration that appellant insists show discussions to which the
attorney-client privilege should not apply. These portions include
incidental opening statements; project background, including the
history of the proposal and process; background city law and
planning processes; motion and proposal development before the
city council; the effects of rescinding, and considerations in favor
of and against rescinding; as set forth above, whether deference
to a council member with greater knowledge of the proposal is
warranted or legal; discussions concerning confidentiality; and
consideration of potential courses of action in light of the
threatened litigation, including relevant planning process,
timing, state law, framing of legal issues, and required
information relevant to alternative courses of action.
In ruling on appellant’s motion, the trial court relied on
Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 332, for
the proposition that confidentiality of closed sessions is “strongly
inferred from the various provisions of the [Brown] Act
pertaining to the recording of closed sessions.” The court further
noted that disclosure of the closed session proceedings necessarily
destroys the closed session confidentiality which is inherent in
the Brown Act. The trial court reviewed the privilege log and
Fauble declaration and reasonably concluded that all discussions
“were motivated by the pending litigation within the meaning of
section 54956.9(a), not politics or public policy.”
The privilege log and Fauble declaration support the trial
court’s conclusion that all discussions in the closed session were
24
in response to threatened litigation. The Fauble declaration
confirms that Fauble personally attended the closed session and
that, “[e]xcept for insignificant statements at the start of the
April 1, 2016 meeting, all of the discussion at that closed-session
meeting concerned legal advice and presentation of background
facts by necessary staff, deliberation of considerations regarding
potential causes of action and legal exposure, and possible
courses of action by the City Council and associated consequences
of those possible courses of action in response to threatened
litigation.” Fauble also made clear that at no time did anyone
present at the meeting discuss how any member should vote.
Fauble stated: “The President of the City Council did not
expressly or impliedly direct the other City Council members as
to how to vote.” He further attested: “No City Council member
agreed as to how to vote. No City Council member committed or
promised to vote a certain way.” The privilege log shows that
Assistant City Attorney Kaufmann-Macias was a speaker during
the majority of the discussions, and all such discussions were
related to the threatened litigation and fell into the categories
that Fauble described. No abuse of discretion occurred.6
6 Because we have determined that the trial court did not err
in declining to review the record of the meeting in camera, we do
not address appellant’s arguments as to the appropriate remedy
had such an error occurred. Appellant argues that should a
violation of the Brown Act occur, any action taken in violation of
the Brown Act is null and void pursuant to section 54960.1,
subdivision (a). Appellant also argues that the court had
authority to order the city council to audio record its future closed
sessions and to preserve the audio recordings under section
54960, and appellant would be entitled to attorney fees and costs
25
II. Third cause of action for promissory estoppel
The elements of a promissory estoppel claim are (1) a
promise, clear and unambiguous in its terms; (2) reliance by the
party to whom the promise is made; (3) reliance that is both
reasonable and foreseeable; and (4) the party asserting estoppel
must be injured by his reliance. (Flintco Pacific, Inc. v. TEC
Management Consultants, Inc. (2016) 1 Cal.App.5th 727, 734.)
The trial court sustained the city’s demurrer to appellant’s
third cause of action for promissory estoppel on the ground that
appellant did not allege a promise by the city. The trial court
found that “the March 2015 Action is a mere factual statement
that the City would enter negotiations with [appellant]. On its
face, the March 2015 Action does not state that the City will
unquestionably acquire the parcel.”
We review the trial court’s ruling sustaining the demurrer
de novo, exercising independent judgment as to whether a cause
of action was stated as a matter of law. (Blank v. Kirwan (1985)
39 Cal.3d 311, 318.) We apply the abuse of discretion standard in
reviewing the trial court’s denial of leave to amend. (Ibid.)
Appellant contends that the trial court was incorrect in
finding no allegation an actionable promise, as the FAPC alleged:
“. . . the March 2015 Action constituted a promise that the City
pursuant to section 54960.5. We express no opinion as to the
available remedies had a violation occurred. We further decline
to address appellant’s policy argument that the trial court’s
ruling would permit a city to hide its deliberations on almost all
land use projects because CEQA litigation is so prevalent. That
was not the issue here, where appellant had written two letters
expressly threatening legal action.
26
would consider the GPA, ZC, [and] SPR[7] for the Development
Property in exchange for the anticipated acquisition of the
Donation Property. This necessarily included the preparation of
an EIR, the cost for which was to be borne by [appellant], and
required that the City conduct hearings to consider the
approvals. . . . [Appellant] understood at the time that the City’s
promise did not include a promise to approve the GPA, ZC and
SPR, but he did reasonably understand the City’s clear promise
was to allow the process to be completed, including the EIR
preparation and the public hearings on the GPA, ZC and SPR.”
Thus, appellant contends, the FAPC alleged all the
elements of a claim for promissory estoppel against a government
entity, including a promise.
However, the motion adopted by the city council reveals no
such promise.8 The March 18, 2015 action by the city council
“authoriz[ed]” and “instruct[ed]” the Department of General
Services to “enter into negotiations” with appellant for the city to
acquire a parcel for open space, and “instruct[ed]” the Planning
Department to “initiate consideration” of a GPA and ZC, to
rezone the parcels. (Some capitalization omitted.) Contrary to
appellant’s allegations, the city’s motion to initiate consideration
does not constitute a promise to prepare an EIR or conduct
hearings to consider the approvals. Instead, the nature of any
action on the part of the city was ambiguous.
7 In the FAPC, “SPR” stood for site plan review.
8 Facts appearing in documents properly considered by the
trial court will be accepted as true and, if contrary to the
allegations in the pleading, will be given precedence. (Dodd v.
Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1627.)
27
In order to state a claim for promissory estoppel, a plaintiff
must allege a promise that is “‘clear and unambiguous in its
terms.’” (Garcia v. World Savings, FSB (2010) 183 Cal.App.4th
1031, 1044.) “‘Estoppel cannot be established from . . .
preliminary discussions and negotiations.’” (Ibid.) “A ‘promise’ is
an assurance that a person will or will not do something.”
(Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th
411, 417.) In the context of land use claims against the
government, “[c]ourts have yet to extend the vested rights or
estoppel theory to instances where a developer lacks a building
permit or the functional equivalent, regardless of the property
owner’s detrimental reliance on local government actions and
regardless of how many other land use and other preliminary
approvals have been granted.” (Toigo v. Town of Ross (1998) 70
Cal.App.4th 309, 322 (Toigo).) To the contrary, “‘“[w]here no such
permit has been issued, it is difficult to conceive of any basis for
such estoppel.”’” (Ibid.)
Here, no basis for a claim of promissory estoppel existed.
The city did not make a clear, unambiguous promise to appellant
to prepare an EIR, conduct public hearings, or otherwise take
action on appellant’s property proposals. The city’s decision to
enter negotiations, and to initiate consideration, do not constitute
actionable promises as a matter of law, therefore the trial court
did not err in sustaining the city’s demurrer to appellant’s
promissory estoppel cause of action.9
9 As we have determined there was no actionable promise as
a matter of law, we decline to discuss the parties’ competing
arguments regarding governmental immunity. (§ 818.2; HFH,
Ltd. v. Superior Court (1975) 15 Cal.3d 508, 519; Land Waste
28
III. Fifth cause of action for violation of civil rights
The Fourteenth Amendment of the United States
Constitution states in relevant part that no state shall “deprive
any person of life, liberty, or property, without due process of
law.” (U.S. Const., 14th Amend., § 1.) Before reaching any
question about the fairness of a particular action, the court must
analyze whether a protected interest in property is implicated.
(Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152,
1178 (Clark).) “If no such interest is involved, then the . . .
protections of the due process clause do not come into play.”
(Ibid.)
Appellant argues that the city’s act of rescinding the March
2015 action constituted a violation of appellant’s due process
rights because the act was based on a change of politics, rather
than any criteria or government standards.10 Appellant argues
that the arbitrary action of the city council in rescinding the
March 2015 action was legally unsupportable. Appellant cites
Ross v. City of Yorba Linda (1991) 1 Cal.App.4th 954, 968 (Ross),
for the proposition that the government may not “‘deprive an
Management v. Contra Costa County Bd. of Supervisors (1990)
222 Cal.App.3d 950, 962-963.)
10 Appellant asserts that the city violated both its procedural
and substantive due process rights. However, appellant cites no
authority suggesting that the city’s procedure was
constitutionally deficient. Therefore, we focus on the substantive
due process claim. (Anastos v. Lee (2004) 118 Cal.App.4th 1314,
1318 [“Contentions supported neither by argument nor by
citation of authority are deemed to be without foundation and to
have been abandoned.”].)
29
individual of property rights by a plebiscite of neighbors . . . .
Such action is arbitrary and unlawful . . . .’”
The trial court sustained the city’s demurrer to this cause
of action on the ground that appellant failed to allege that
appellant was granted any property right by the March 2015
action. The court stated: “The FAP[C] does not allege that the
project ha[d] already been approved or that permits had already
been issued. Nor does the FAP[C] allege that the City was
otherwise bound by its indication (by seeking to enter into
negotiations with [appellant]) to rezone the Property and acquire
the Donation Property. Thus, the FAP[C] does not allege a
property interest for purposes of due process.”
As set forth above, we review the trial court’s decision de
novo. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) We find the
trial court correctly determined that appellant failed to allege a
protectable property interest. As explained in Clark, supra, 48
Cal.App.4th at page 1180, “‘[t]o have a property interest in a
benefit, a person clearly must have more than an abstract need or
desire for it. He must have more than a unilateral expectation of
it. He must, instead, have a legitimate claim of entitlement to
it.’” Thus, the Clark court stated that the relevant analysis must
focus on “‘the degree of discretion given the decisionmaker and
not on the probability of the decision’s favorable outcome.’”
(Ibid.) “‘Any significant discretion conferred upon the local
agency defeats the claim of a property interest.’” (Ibid.)
Here, the city council’s actions were discretionary
legislative actions, and the council possessed considerable
discretion in considering appellant’s request for a GPA and ZC.
Appellant admitted in discovery responses appellant’s
understanding that the city retains full discretion to approve or
30
deny any land use entitlements. The city council’s broad
discretion to deny appellant’s requests “‘“suffices to defeat the
existence of a federally protected property interest.”’” (Clark,
supra, 48 Cal.App.4th at pp. 1180-1181.)
The cases cited by appellant are distinguishable. Ross held
that the landowners had been subjected to discriminatory “‘spot
zoning,’” which could not be justified by neighborhood opposition.
(Ross, supra, 1 Cal.App.4th at pp. 960, 970.)11 As the plaintiffs
and two of their neighbors were “special objects of legislative
action,” the enactment was “constitutionally impermissible.” (Id.
at p. 970.) Such is not the case here, where appellant has not
been singled out for special legislation. Del Monte Dunes v. City
of Monterey (9th Cir. 1990) 920 F.2d 1496 is also distinguishable
as it involved the city’s abrupt change of course after it had
“given approval to the 190-unit project, with 15 conditions that
appellants substantially met.” (Id. at p. 1508.) Under these
circumstances, the appellants’ substantive due process
allegations survived summary judgment. Here, in contrast, the
city never gave approval, conditional or otherwise, to appellant’s
proposed project. Instead, the city merely agreed to enter
negotiations and initiate consideration of appellant’s requested
GPA and ZC.
Because appellant failed to allege any property interest
protected by the due process clause, the trial court did not err in
sustaining the city’s demurrer to appellant’s constitutional claim.
11 “Spot zoning is ‘[w]here a small parcel is restricted and
given less rights than the surrounding property . . . .’” (Ross,
supra, 1 Cal.App.4th at p. 960.)
31
IV. Second cause of action for inverse condemnation
Appellant contends that the trial court erred in entering
summary judgment against appellant on the second cause of
action for inverse condemnation/regulatory taking. In reviewing
the trial court’s decision, we apply a de novo standard of review,
considering all the evidence set forth in the moving and
opposition papers except that to which objections have been
sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,
334.)
State and federal law prohibit the government from taking
private property without just compensation. (U.S. Const., 5th
Amend.,; Cal. Const., art. I, § 19.) A two-step analysis is used to
determine whether a taking has occurred: “first, we determine
whether the subject matter is ‘property’ within the meaning of
the Fifth Amendment and, second, we establish whether there
has been a taking of that property, for which compensation is
due.” (Engquist v. Oregon Dept. of Agriculture (9th Cir. 2007) 478
F.3d 985, 1002.) When a plaintiff alleges a regulatory taking, the
plaintiff “must establish that the regulation has in substance
‘taken’ his property—that is, that the regulation ‘goes too far.’”
(MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S.
340, 348, fn. omitted.) Regulations that do not interfere with the
present permitted use of a property are generally not considered
takings, because they do not interfere with the owner’s “primary
expectation concerning the use of the parcel.” (Penn Central
Transp. Co. v. New York City (1978) 438 U.S. 104, 136.)
Courts lack jurisdiction to adjudicate a takings claim where
the government has not made a final decision on the scope of
development permitted on the property at issue. Thus, “an
essential prerequisite” to the assertion of a takings claim “is a
32
final and authoritative determination of the type and intensity of
development legally permitted on the subject property.”
(MacDonald, Sommer & Frates v. Yolo County, supra, 477 U.S. at
p. 348.) A “‘final and authoritative determination’” requires that
the plaintiff “must first have submitted a development plan
which was rejected, but also . . . the plaintiff must seek variances
which would permit uses not allowed under the regulations.”
(Kinzli v. City of Santa Cruz (9th Cir. 1987) 818 F.2d 1449, 1453-
1454, overruled on other grounds in Knick v. Township of Scott,
Pennsylvania (2019) 139 S.Ct. 2162; see Calprop Corp. v. City of
San Diego (2000) 77 Cal.App.4th 582, 598 [affirming summary
judgment where plaintiff had never asked the city for approval of
any proposed development on the disputed land]; Milagra Ridge
Partners, Ltd. v. City of Pacifica (1998) 62 Cal.App.4th 108, 119
[finding plaintiff’s taking claim “not ripe for adjudication” where
plaintiff had “not submitted an application to develop the
property under the current zoning”].) However, “once it becomes
clear that . . . the permissible uses of the property are known to a
reasonable degree of certainty, a takings claim is likely to have
ripened.” (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 620.)
The trial court granted summary judgment in favor of the
city on appellant’s regulatory takings cause of action on the
ground that it was not ripe and there was no material issue of
disputed fact precluding summary judgment on this issue. The
city presented evidence that appellant had not attempted to
develop the property under its current zoning rules with one-
family dwellings or any other allowed use under existing
regulations. Appellant had not applied to develop any part of the
property under existing zoning laws. Further the city had not
“made a final decision about the nature and scope of development
33
that would ultimately be allowed on the Property.” Appellant did
not allege that the city changed the zoning after the property was
purchased, only that the city refused to change the zoning
designation. The court noted that appellant cited no authority
for the position that a taking may be found based on a public
entity’s failure to change existing zoning laws.
Appellant argues that there existed a disputed issue of fact
as to whether the city’s action in rescinding the March 2015
action effected an unconstitutional taking. In response to the
city’s assertion that its rescission of the March 2015 action did
not preclude consideration of other projects on the property,
appellant stated: “[T]he city’s rescission of the March 2015 Action
terminated the consideration of a General Plan Amendment for
the Property initiated by the City Council. [Appellant] then
applied to the City Planning Director for the initiation of a
General Plan Amendment for the Property and was summarily
denied without explanation, terminating the consideration of a
General Plan Amendment for the Property initiated by the
Planning Director. Thus, the City has rejected [appellant’s]
General Plan Amendment attempts on multiple occasions, which
is a final determination that the City will no longer consider the
General Plan Amendment that it invited and induced [appellant]
to spend approximately $400,000 to implement.”
Appellant’s response did not create a triable issue of
material fact. Appellant’s attempts to instigate consideration of a
GPA does not fall under the Supreme Court’s definition of a “final
and authoritative determination” because appellant provides no
evidence that he presented an application to develop the property
under its current permitted zoning or attempted to obtain a
variance for a smaller project. (Kinzli v. City of Santa Cruz,
34
supra, 818 F.2d at p. 1455 [a “‘meaningful application’” does not
include a request for “‘exceedingly grandiose development’”]; see
Long Beach Equities, Inc. v. County of Ventura (1991) 231
Cal.App.3d 1016, 1034 [finding that “[d]enial of approvals for a
particular and relatively intensive residential development, as
here, cannot be equated with a refusal to permit any beneficial
use whatsoever”]; Toigo, supra, 70 Cal.App.4th at p. 330 [findng
claim not ripe where “Toigo has not explored a reduction in size,
scope, or intensity of the proposed development”].) None of the
testimony referred to by appellant discusses how the city would
respond to an application under existing regulations or for a
smaller project. Instead, it provides mere “‘speculation,
conjecture, imagination or guess work’” as to how the city would
respond to such an application. (Toigo, supra, at p. 330.) Thus,
appellant’s evidence is insufficient as a matter of law to create a
triable issue of fact as to ripeness.
County of Alameda v. Superior Court (2005) 133
Cal.App.4th 558 is instructive. A property owner challenged a
voter proposition that changed the designation of certain
property. The property owner contended that the proposition
constituted a taking. Alameda County prevailed on its motion for
summary judgment on the ground that the claim was not ripe
because the property owner had never submitted a development
proposal to the county. The County of Alameda court rejected the
property owner’s argument that an application would be futile.
(Id. at pp. 568-569.) The court noted that before claiming the
futility exception, the landowner “‘“must submit at least one
development proposal and one application for a variance if
meaningful application and submission can be made.”’” (Id. at
p. 568.)
35
Appellant failed to present evidence showing a triable issue
of material fact on the question of ripeness. The trial court thus
did not err in granting summary judgment on this cause of action
on the ground that appellant’s claim was not ripe.
V. First cause of action for writ of mandate
Appellant’s first cause of action attempted to state a claim
for writ of mandamus pursuant to section 54960.1, subdivision
(a). Section 54960.1, subdivision (a) provides that a person “may
commence an action by mandamus or injunction for the purpose
of obtaining a judicial determination that an action taken by a
legislative body of a local agency in violation of Section 54953 . . .
is null and void under this section.” Section 54953 requires that
meetings generally be conducted in public.
Appellant argues that the trial court abused its discretion
by declining to grant leave to amend this allegation. However,
appellants offer no proposed amendment showing how the claim
could be amended to survive demurrer. Appellant carries the
burden on appeal of showing that a proposed amendment would
cure the defect in the allegation. (Schifando v. City of Los
Angeles (2003) 31 Cal.4th 1074, 1081.) To satisfy that burden, an
appellant “‘“must show in what manner he can amend his
complaint and how that amendment will change the legal effect
of his pleading.”’” (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th
564, 580.)
Appellant appears to suggest that appellant seeks to
amend the first cause of action for writ of mandate in the event
that this court finds the trial court erred in entering judgment for
the city on appellant’s Brown Act claims. Because we find that
the trial court did not err in finding in the city’s favor on the
Brown Act claims, we find the trial court did not abuse its
36
discretion in sustaining without leave to amend the city’s
demurrer to appellant’s first cause of action for writ of mandate.
VI. Attorney fee award
Code of Civil Procedure section 2033.420, subdivision (a)
provides that if a party “fails to admit . . . the truth of any matter
when requested to do so,” and the party requesting that
admission “thereafter proves . . . the truth of that matter, the
party requesting the admission may move the court for an order
requiring the party to whom the request was directed to pay the
reasonable expenses incurred in making that proof, including
reasonable attorney’s fees.” Section 2033.420, subdivision (b),
provides that the court “shall” make the order awarding expenses
and fees “unless it finds” that one of four exceptions applies. One
of those exceptions is “[t]he party failing to make the admission
had reasonable ground to believe that that party would prevail on
the matter.” (Code Civ. Proc., § 2033.420, subd. (b)(3).)
The city was awarded $32,500 in attorney fees against
appellant for the fees the city incurred proving that appellant’s
takings claim was not ripe. Appellant denied the city’s requests
for admission related to the ripeness of appellant’s takings claim.
The city proved the truth of those matters when it prevailed on
summary judgment on this issue. We review the trial court’s
attorney fee award for abuse of discretion. (Miller v. American
Greetings Corp. (2008) 161 Cal.App.4th 1055, 1066.)
Appellant contends that the trial court abused its
discretion because appellant provided testimony showing that
appellant had reasonable grounds to believe it would prevail on
the matters not admitted. In support of this argument, appellant
cites to appellant’s responses to form interrogatory No. 17.1, in
which appellant provided facts to support denial of the city’s
37
requests for admission (RFA’s).12 Appellant insisted that the
city’s rescission of the March 2015 action made it legally and
economically impossible to beneficially and productively use the
property, but stated this would be a matter for expert analysis
and testimony, to be disclosed when expert discovery is
undertaken. Thus, appellant argues, appellant had a reasonable,
good faith basis to believe appellant would prevail on the issue of
ripeness.
The trial court addressed appellant’s arguments, finding
that the city was entitled to fees on this issue based on
appellant’s “failure to admit that the city had ‘not made it
impossible’ to develop his parcels of land with one-family
dwellings or to ‘undertake development of any kind.’” Where the
city asked if it was “‘impossible’ to build on the property,
[appellant] had no reason to expect that a Court would find it
12 The city’s RFA No. 1 asked appellant to admit that the
takings claim was not ripe. RFA Nos. 2, 13 and 24 asked
appellant to admit that the city had not issued a final
authoritative determination of development permitted on the
properties. RFA Nos. 3, 14, and 25 asked appellant to admit that
the city had not made it impossible to develop the properties with
a single one-family dwelling. RFA No. 18 asked appellant to
admit the falsity of the allegation in the FAPC that “the City
made it impossible for [appellant] to undertake development of
any kind on the Property.” Appellant objected to each of these
RFA’s before denying each one. Appellant explained, “In light of
the City’s April 1 Rescission Motion and May 13 Rescission
Motion, . . . it is impossible for [appellant] to either use or receive
benefit from his investment in the Property. Any future
application for use of the Property will require new and/or
updated studies and environmental review at significant cost to
[appellant].”
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impossible to build on the property because it was possible to
build on the property albeit not to the same degree of financial
lucrativeness preferred by [appellant].” The court found this
significant because “the allegation that the City’s actions made it
impossible [to] develop the property was the sole basis for the
Courts order of July 6, 2020 overruling the City’s demurrer to the
Second Cause of Action.”
The purpose of RFA’s is to expedite trial and narrow the
issues. (Barnett v. Penske Truck Leasing (2001) 90 Cal.App.4th
494, 499.) Here, appellant denied the city’s RFA’s on the
impossibility issue, leading the trial court to overrule the city’s
demurrer and allow appellant to move forward with the takings
cause of action. After the city prevailed on this issue on
summary judgment, the trial court was permitted to sanction
appellant and award the city its costs of proving the truth of the
requested admission. (Ibid.) The trial court in this matter found
that appellant had no reasonable basis to deny the city had not
made it impossible to develop his parcels of land—a fact which
the city had to undertake to establish on summary judgment.
Appellant cites Orange County Water Dist. v. The Arnold
Engineering Co. (2018) 31 Cal.App.5th 96, 120-121, for the
proposition that “where RFAs require sophisticated analyses of
technical issues, courts are more willing to credit a party’s
reasonable belief that it would prevail based on expert opinion
evidence.” The trial court did not err in concluding that the
question of whether the city had made it impossible to build on
the property was not a technical matter requiring sophisticated
analysis. Appellant had not applied to use the property in
permissible ways nor sought approval for a smaller-scale project.
The trial court was justified in finding that use of the property
39
was not impossible simply because it would not generate the
degree of financial gain that appellant desired. Appellant
invested in the properties knowing the zoning limitations, and
the city’s decision to rescind consideration of appellant’s hoped-
for GPA and ZC does not render impossible any development of
the property, regardless of the investment required for such
development. Under the circumstances, the trial court was
justified in declining to consider appellant’s estimations of the
financial infeasibility to build permitted residences on the
properties to equate to impossibility. Appellant cites no authority
for his position that financially practical impossibility should be
treated as legal impossibility.
Where the responding party fails to show that one of the
four enumerated exceptions is applicable, the court “shall” make
the order awarding expenses, including fees. (Code Civ. Proc.,
§ 2033.420, subd. (b).) Here, the trial court found that appellant
did not show a reasonable ground to believe that appellant would
prevail on the question of impossibility of development. Under
the circumstances, the trial court did not abuse its discretion in
ordering the award of attorney fees.13
13 Appellant filed a request for judicial notice on December 29,
2022, asking that we take judicial notice of an article from the
Los Angeles Times and a dictionary definition of the term
“abrogate.” Appellant’s request for judicial notice is denied.
40
DISPOSITION
The judgment and postjudgment award are affirmed. The
city is awarded its costs of appeal.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
41