Nemer v. City of Mill Valley CA1/2 ( 2023 )

Filed 12/22/23 Nemer v. City of Mill Valley CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
GARY NEMER,
Plaintiff and Appellant,
A166234
v.
CITY OF MILL VALLEY et al., (Marin County
Super. Ct. No. CIV1701132)
Defendants and Respondents.
MEMORANDUM OPINION
This is the third appeal filed by Gary Nemer in his long-running battle
with his neighbors and local planning officials over a home remodel project
that Nemer alleges exceeds the scope of permits and authorizations his
neighbors were granted and violates the local planning code in numerous
ways. (See Nemer v. City of Mill Valley (Oct. 16, 2020, No. A157210) 2020
Cal.App.Unpub. LEXIS 6758 (Nemer I); Nemer v. City of Mill Valley (Oct. 28,
2020, No. A159224) 2020 Cal.App.Unpub. LEXIS 7090 (Nemer II).) After we
reversed summary judgment against Nemer on narrow grounds, the trial
court held a bench trial and rejected virtually all of Nemer’s claims. Nemer
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now appeals again. Because he has not filed an opening brief that is
adequate to enable meaningful review, we affirm the judgment.1
We incorporate by reference the factual and procedural background
described in Nemer’s two priors appeals and only state the facts necessary to
dispose of this appeal.
As described in our prior appellate opinion, Nemer’s “operative
pleading is extremely detailed and difficult to parse, as is his appellate
briefing, but in substance Nemer alleges that city planning authorities
turned a blind eye to his complaints about the unauthorized and illegal
aspects of construction, and never held a hearing about his code violation
complaints or those aspects of the construction that he complained were
improper and required a variance under the local planning code. He seeks a
writ of mandate and related relief, asking the court to require the City,
among other things, to void the certificate of occupancy it issued after a final
inspection of the completed construction and to hold properly noticed
hearings about those aspects of the construction that he challenges.” (Nemer
I, supra, at pp. *1–*2.)
Nemer sued the City of Mill Valley and the Mill Valley City Council
(collectively, the “City”) and his neighbors personally, the Geiszlers. Against
the City, he alleged four causes of action: two seeking a writ of mandate (the
first and second causes of action), a third cause of action alleging the
1 We resolve this case by memorandum opinion. (Cal. Stds. of Jud.
Admin., § 8.1.) We do not recite the factual and procedural background
because our opinion is unpublished and the parties know, or should know,
“the facts of the case and its procedural history.” (People v. Garcia (2002)
97 Cal.App.4th 847, 851 [unpublished opinion merely reviewing correctness
of trial court’s decision “does not merit extensive factual or legal statement”].)
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violation of procedural due process, and a fifth cause of action for declaratory
relief alleging the existence of a dispute as to whether the Geiszlers’ remodel
project exceeds the scope of their City approvals and violates the Mill Valley
Municipal Code and whether the City has discretion to refrain from enforcing
the local code. (See Nemer I, supra, at pp. *4–*5.) He alleged the declaratory
relief cause of action against the Geiszlers as well, and also a fourth cause of
action brought under Government Code section 36900, which creates a
private right of action for violations of local ordinances. (Gov. Code, § 36900,
subd. (a) [“The violation of a city ordinance may be prosecuted by city
authorities in the name of the people of the State of California, or redressed
by civil action”].)
The trial court granted summary judgment in favor of the City, and we
reversed. (Nemer I, supra, at p. *1.) We did not address the merits of
Nemer’s allegations about work done without required permits or in violation
of local law; those issues were not before us. We held that, under the Mill
Valley Municipal Code, the City has a mandatory duty to void the certificate
of occupancy it issued to the Geiszlers if Nemer proved his allegations that
the construction violated the Code or the terms and conditions of the permits.
(Nemer I, at p. *10.) We also held that the City did not prove as a matter of
law that Nemer could not prevail on his claim the City violated state and
local law by failing to hold a publicly noticed hearing about those aspects of
construction that Nemer alleges require a variance. (Id. at p. *2.) We did,
however, affirm the trial court’s rejection of Nemer’s constitutional claims
because we were “unable to discern an intelligible legal argument for
reversal” by Nemer. (Id. at p. *33.)
Following a bench trial on remand, the trial court issued a
comprehensive 43-page statement of decision ruling against Nemer on almost
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every issue. The court concluded the Geiszlers’ remodel project did not
violate any approvals or the Mill Valley Municipal Code other than in one
respect: it lacked three on-site parking spaces as required for single family
dwellings under the Mill Valley Municipal Code “because part of the parking
spaces after construction are on City property.”
On July 27, 2022, the court issued a “limited writ of mandate” directing
the City to comply with section 20.04.042 of the Code. As we previously
explained, that provision “prohibits the issuance of a certificate of occupancy
for any structure that violates the Zoning Code and declares any such
certificate of occupancy to be ‘null and void.’ ” (Nemer I, supra, at p. *5.)
The City filed a return to the writ, and Nemer objected to its
sufficiency. The trial court issued an order to show cause as to why the writ
should not be discharged but before a hearing on that issue, Nemer filed a
notice of appeal from the July 27, 2022 writ, and the trial court stayed
proceedings pending this appeal.
Nemer has filed a lengthy opening brief that is virtually impossible to
understand. It is vague, conclusory, and unfocused. He has not explained
the relevant facts in a coherent way nor summarized the relevant evidence;
many of his record citations are inscrutable; his 32-page “Statement of the
Case” and “Statement of Facts” is argumentative and uninformative; and his
kitchen-sink approach to legal argument in the “Argument” section of his
brief is almost entirely lacking in legal authority and analysis. Two
respondent’s briefs attempt to parse his arguments, and persuasively rebut
them, and yet his reply brief suffers from the same defects as his opening
brief.
For example, illustrative of his defective and uninformative statement
of the facts is this discussion at page 47, captioned under a heading stating
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that his neighbors “constructed foundations within setbacks without variance
approval (see III.D.9 and III.F.3., unapproved Code violations)”:
“Petitioner introduced evidence based upon Petitioner’s Observation
Testimony that Geiszlers constructed foundations, some of which were within
setbacks. (Setback violations are found in CT:541-545, Trial Fact 21, 22, 23,
25, 29, 30, 31, and see III.D.9 and III.F.2). The testimony is confirmed by
Hockstrasser, CT:708, Item #25. The foundation work could be observed in
the same way as demolition work. Geiszlers’ construction of foundations was
not described in the Approval, and some of the work was within setbacks and
was specifically restricted in the Approval. (see Approval Table Row 11,
Sections III.D.9 and III.F.2). Respondents did not rebut Petitioner’s evidence
which covers As-Built Work. The Statement of Decision does not adequately
address the deficiencies in the Respondents’ evidence.” (Bolding omitted.)
The cross-references in this discussion (“III.D.9” and “III.F.2”) are to
two other portions of the statement of facts that are equally impenetrable
and supported in part by yet further cross-references to other (equally
confusing) sections of the statement of facts. The reference to “Approval
Table Row 11” is a cross-reference to an incomprehensible table of
information at page 15 of the statement of facts that is supported by no
citation to any actual evidence.2 And apart from the gymnastics required to
2 He describes it as “a table summarizing the Table of Approval/Permit
Authorizations in the Trial Brief [at CT 556-557] . . . with the final approvals
highlighted.” At row 11 it says this: under the first column entitled “In
Application [see Ex C Trial Fact]” it states “NO ADDITIONAL
FOUNDATION ADDED AT CREEK SETBACK, EXISTING FOOTINGS TO
BE REUSED.” Under the second column entitled, “In Approval [See Ex C
Trial Fact]” it states “No new foundation will be placed within the creek
setback.” No record citations whatsoever are included in the table. And his
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comprehend the facts from bits of information stitched together this way, the
portions of his own declaration he cites concerning construction within
setbacks was ruled largely inadmissible by the trial court. What is perhaps
most mystifying of all is his repeated citation (including in the cross-
referenced portions of the statement of facts) to an expert declaration as
support for any suggestion that setbacks were an issue. In the portion Nemer
cites, the expert states: “The Design Review approval includes findings that
the project complies with the standard setbacks permitted by the zoning and
that no setback variances to zoning standards was needed. See approved
Design Review plans and approved Building Permit Plans.” (Italics added.)
Illustrative of his legal analysis are the first seven pages of his legal
argument section, preceding a lengthy discussion of the evidence, which is
incomprehensible, disorganized and conclusory. It contains no analysis of
any legal principles much less relevant ones, touching principally on the
subject of res judicata (a discussion that itself includes a stray, one-sentence
claim of unrelated evidentiary error). The few citations to legal authority
scattered throughout these pages are not explained or analyzed. At bottom,
it is impossible to discern any relevant points of law from this discussion that
would enable us to evaluate his claims, as stated in several of his argument
headings, that “The City Followed An Improper Approval Procedure” or that
“A Writ on the Code Violation Complaint is Required.”
A trial court’s order is presumed correct, and the party challenging that
order has the burden to demonstrate the court committed reversible error.
(Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) “ ‘In order to demonstrate
general description of the table is supported by a single citation to a portion
of his trial brief that itself does not refer to any actual evidence.
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error, an appellant must supply the reviewing court with some cogent
argument supported by legal analysis and citation to the record.’ ” (United
Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146; see
also Cal. Rules of Court, rule 8.204(a)(1)(B).) “Mere suggestions of error
without supporting argument or authority other than general abstract
principles do not properly present grounds for appellate review.”
(Department of Alcoholic Beverage Control v. Alcoholic Beverage Control
Appeals Bd. (2002) 100 Cal.App.4th 1066, 1078.) Likewise, it is not sufficient
simply to cite legal authority without explaining how it applies. (Doe v.
McLaughlin (2022) 83 Cal.App.5th 640, 654; Allen v. City of
Sacramento (2015) 234 Cal.App.4th 41, 52.) The appellant’s opening brief
must also provide a summary of the significant facts. (Cal. Rules Court,
rule 8.204(a)(2)(C).) Nemer’s pro per status does not lessen his burden or
excuse his compliance with the requirement of presenting a cognizable
appellate argument. (See Barton v. New United Motor Manufacturing, Inc.
(1996) 43 Cal.App.4th 1200, 1210 [self-represented litigant is “treated like
any other party and is entitled to the same, but no greater consideration than
other litigants and attorneys”].) And his opening brief violates these
principles on virtually every page.
The incoherence of Nemer’s papers has been a chronic issue. As stated
by the trial court, “Nemer’s papers are confusing and often hard to follow”
and “[p]roblems with the clarity of Nemer’s briefs and submissions have
arisen throughout the proceedings, including at the appellate level.” We
ourselves noted these problems in Nemer’s two prior appeals. (See Nemer I.,
supra, at p. *1; Nemer II, supra, at p. *1.) Although we succeeded in
deciphering and addressing several discrete legal issues he was attempting to
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raise in the prior appeals, which arose on smaller records and were more
limited in scope, it is simply not possible to do so here.
We refrain from attempting to identify each appellate argument Nemer
makes and point out the specific ways in which each one fails to present a
proper, cognizable appellate argument. The opening brief is a factual and
legal jumble. We cannot act as his advocate to develop a cogent argument on
his behalf and he has presented none. (See Benach v. County of Los Angeles
(2007) 149 Cal.App.4th 836, 852 [“It is not our place to construct theories or
arguments to undermine the judgment and defeat the presumption of
correctness”].)
Nemer has failed to present any coherent, intelligible legal argument
for reversal supported by relevant legal authority and an appropriate
discussion of the material portions of the record. We therefore affirm the
judgment.
The trial court has not yet ruled on whether the City’s return on the
writ is sufficient and we express no opinion on that subject.
DISPOSITION
The trial court’s decision is affirmed. Respondents shall recover their
costs.
STEWART, P. J.
WE CONCUR:
MILLER, J.
MARKMAN, J.*
* Judge of the Superior Court of California, County of Alameda,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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