Friends of Westwanda Drive v. City of Los Angeles CA2/2 ( 2024 )

Filed 1/22/24 Friends of Westwanda Drive v. City of Los Angeles CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
FRIENDS OF WESTWANDA B321479
DRIVE,
(Los Angeles County
Plaintiff and Respondent,
Super. Ct. No.
v. 20STCP03490)
CITY OF LOS ANGELES,
Defendant;
KARLA SHAHIN et al.,
Real Parties in Interest and
Appellants.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Mary H. Strobel, Judge. Affirmed.
Luna & Glushon and Kristina Kropp for Real Parties in
Interest and Appellants.
Channel Law Group, Jamie T. Hall and Julian K.
Quattlebaum for Plaintiff and Respondent.
_______________________________________
This appeal is related to Friends of Westwanda Drive v.
City of Los Angeles (Jan. 22, 2024, B314932 [nonpub. opn.]) and
involves a continued dispute among neighbors. In this case, the
trial court issued a peremptory writ of mandate based on
evidence the City of Los Angeles (City) improperly granted
building and grading permits for a proposed home construction
(Project) in violation of Los Angeles Municipal Code section
12.21.C.10(i)(3).1 That ordinance prohibits the granting of such
permits unless the roadway on which the Project is located
satisfies a minimum width requirement or the construction is
approved by a zoning administrator (ZA).
The issues raised are (1) whether section 12.21.C.10(i)(3)
supported the City’s issuance of the permits; and (2) whether the
trial court erred in refusing to grant a new trial or otherwise
agree to consider evidence of supplemental permits that cured
any purported defects in the original permits or rendered them
moot. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts
Karla Shahin owns a lot on Westwanda Drive in Benedict
Canyon.2 The lot sits on the corner of Westwanda Drive and
Stowell Lane in a hillside residential development. Any home
construction is therefore regulated by the Single-family Zone
Hillside Development Standards of section 12.21.
1 Further undesignated statutory references are to the Los
Angeles Municipal Code, unless otherwise indicated.
2 The street name is referred to in the record as
“Westwanda Drive” or “West Westwanda Drive.” We shall use
“Westwanda Drive,” the name used by the parties.
2
Real parties in interest Shahin and her husband Armen
Melkonians (collectively real parties) planned to build a two-story
single-family home and a site retaining wall and to have the lot
graded. Shahin applied to the Department of Building and
Public Safety/Public Works (LADBS) for the necessary
ministerial permits.
In May 2018, the City’s Bureau of Engineering (BOE)
determined Westwanda Drive and Stowell Lane, the two
roadways adjacent to the Shahin lot, satisfied the minimum
roadway width requirement of 20 feet pursuant to section
12.21.C.10(i)(3). BOE relayed an electronic clearance to LADBS,
which issued the requested permits to Shahin.
Neighborhood residents became concerned the permits
were issued to Shahin in error. Friends of Westwanda Drive
(Friends) believed Westwanda Drive did not meet the minimum
roadway width requirement and notified the LADBS and BOE.
At some point, BOE conducted a survey and informed
LADBS of the result. The survey confirmed that multiple
portions of Westwanda Drive measured less than 20 feet in
width. Many permits had been issued to residents based on this
“mistaken information.” On September 6, 2018, BOE declined to
take “any other action.”
II. Administrative Appeals
On February 27, 2020, Friends filed an appeal (a request
for modification), contesting the issuance of the permits to
Shahin.3 Friends contended LADBS issued the permits in error
based on BOE’s erroneous clearance. A survey, commissioned by
3 Friends originally filed an appeal in September 2018,
which LADBS never processed, and the file was misplaced.
3
Friends, showed Westwanda Drive measured less than the
minimum roadway width requirement in many places. As a
result, Friends argued, no building or grading permits could be
issued unless the street was widened to 20 feet or a zoning
administrator determination (ZAD) was granted in accordance
with section 12.21.C.10(i)(3). Shahin’s permits should, therefore,
be revoked as prematurely issued. On March 10, 2020, LADBS
denied the appeal without comment or written findings.
Friends next appealed to the Board of Building and Safety
Commissioners (BBSC). BBSC held a public hearing on July 28,
2020, during which Friends’s appeal was considered. According
to a LADBS staff member’s testimony and report on appeal, only
one of Friends’s issues fell within BBSC’s purview—whether
LADBS erred or abused its discretion in issuing permits based on
BOE’s erroneous clearance. LADBS’s position was BOE’s task
was to verify that section 12.21.C.10(i)(3)’s requirements had
been met before issuing a clearance. LADBS was therefore
authorized to rely on BOE’s clearance and grant permits where,
as here, the clearance was never rescinded.
An LADBS representative testified despite BOE’s initial
e-mails to the contrary, “after further evaluation, it was agreed
that this clearance was not issued in error.” No further
explanation was provided; no one from BOE testified.
BBSC’s deliberations suggest at least one commissioner
believed LADBS had no authority to override a determination by
a different City agency, namely BOE. Another commissioner
echoed the LADBS staff member’s argument that LADBS did not
err by granting permits based on the BOE clearance, which was
never canceled or withdrawn.
4
On July 31, 2020, BBSC issued a letter of determination
that “LADBS properly complied with all regulations and policies.”
BBSC later denied Friends’s motion for reconsideration.
III. Writ Proceedings
In October 2020, Friends filed a petition for writ of
mandate against the City and LADBS. As pleaded, the first
cause of action was for traditional mandate against LADBS
under Code of Civil Procedure section 1085. The second cause of
action was for administrative mandate against BBSC under Code
of Civil Procedure section 1094.5. The City and real parties
separately opposed the petition.
On February 7, 2020, after hearings and rounds of
supplemental briefing, the trial court issued a 19-page order
granting the petition. The court ruled “no substantial evidence
supports LADBS’s determination that the 20-foot requirement of
section 12.21.C.10(i)(3) was satisfied with respect to the subject
Property.” The court also ruled “BBSC[’s] decision must be set
aside” for the same reason, and because LADBS did not have a
ministerial duty to grant permits that were based on an
erroneous clearance issued by another department.
The trial court scheduled a status conference and invited
the parties to submit supplemental briefs on the appropriate
remedy. On March 9, 2022, the day before the hearing, real
parties filed supplemental declarations that they had obtained a
new BOE clearance and were issued a “supplemental” building
permit to the original building permit. The documents showed
the new clearance and supplemental permit were “obtained for
widening Westwanda from Benedict Canyon to comply with
minimum CPR [continuous paved roadway] of twenty (20) ft.” A
building permit bond had been posted; construction was to be
5
completed before a certificate of occupancy was issued. Copies of
the documents were attached as exhibits. Friends objected to the
evidence.
Following argument at the March 10, 2022 hearing, the
trial court issued a minute order, rejecting real parties’ proffered
evidence. The court explained Friends did not have an
opportunity to consider the evidence, and the record had not been
augmented.
On May 12, 2022, the trial court entered judgment in favor
of Friends and ordered a peremptory writ of mandate be issued
directing LADBS to revoke the building permits and BBSC to set
aside its decision affirming LADBS’s issuance of the permits.
This appeal followed.
DISCUSSION
I. Statutory Interpretation of Section 12.21.C.10(i)(3)
Real parties do not challenge the sufficiency of the evidence
to support the trial court’s findings the minimum 20-feet-
roadway-width requirement of section 12.21.C.10(i)(3) was not
met. Instead, they argue the ordinance plainly exempted their
Project from that requirement and supported the issuance of the
original permits.
“We review this question of statutory interpretation de
novo.”4 (Lopez v. Ledezma (2022) 12 Cal.5th 848, 857.) “We
interpret ordinances using the same rules of interpretation
applicable to statutes.” (Lyles v. Sangadeo-Patel (2014) 225
Cal.App.4th 759, 764.) “ ‘Statutory construction begins with the
4 Because we engage in an independent review, we decline
real parties’ invitation to address the trial court’s interpretation
of or failure to interpret the ordinance.
6
plain, commonsense meaning of the words in the statute,
“ ‘because it is generally the most reliable indicator of legislative
intent and purpose.’ ” [Citation.] “When the language of a
statute is clear, we need go no further.” ’ [Citation.] Where the
language of the statute is potentially ambiguous, ‘ “[i]t is
appropriate to consider evidence of the intent of the enacting
body in addition to the words of the measure, and to examine the
history and background of the provision, in an attempt to
ascertain the most reasonable interpretation.” ’ ” (Valdez v.
Costco Wholesale Corp. (2022) 85 Cal.App.5th 466, 472, quoting
People v. Manzo (2012) 53 Cal.4th 880, 885–886.)
Section 12.21.C.10(i)(3) was the controlling ordinance in
this case. The ordinance breaks down substantively as follows:
Section 12.21 contains general area zoning regulations for the
City. Section 12.21.C.10 sets forth the “Single-Family Zone
Hillside Area Development Standards” in provisions (a) through
(l), including floor area, height, and grading of the property,
among other things. Section 12.21.C.10(i) addresses street access
in hillside areas. Section 12.21.C.10(i)(3) provides: “For any new
construction of, or addition to, a One-Family Dwelling on a Lot
that does not have a vehicular access route from a Street
improved with a minimum 20-foot wide continuous paved
roadway from the driveway apron that provides access to the
main residence to the boundary of the Hillside Area, no Building
permit or Grading permit shall be issued unless the construction
or addition meets the requirements of this Subdivision 10. or has
been approved by a Zoning Administrator pursuant to Section
12.24 X.28 of this Code.”
The parties do not dispute the language of section
12.21.C.10.(i)(3) is clear and the minimum 20-feet roadway width
7
is one of the ordinance’s requirements. The parties disagree,
however, whether the ordinance must be read to relieve real
parties from having to comply with this requirement. Real
parties argue section 12.21.C.10.(i)(3) does not mean what it says
when it dictates the proposed construction is to have a minimum
20-feet roadway width but also states the requested permits shall
nonetheless issue if the proposed construction “meets the
requirements of this Subdivision.” According to real parties, the
phrase “meets the requirements of this Subdivision 10” must
really mean “otherwise meets the requirements of this
Subdivision 10.” In other words, although it did not meet the
minimum 20-feet-roadway-width requirement at the time, the
proposed construction was nonetheless exempt, having satisfied
all (other) subdivision 10 requirements; the permits were not
issued in error.
We reject real parties’ interpretation of section
12.21.C.10(i)(3) and agree with Friends’s view. Real parties have
misread the plain language of the ordinance. What triggers the
application of section 12.21.C.10(i)(3) concerns the street access
to the “Lot” on which the proposed “construction or addition” is to
be built, not the proposed construction or addition itself: If the
lot “does not have a vehicular access route from a Street” with a
minimum 20-feet roadway width, no permits “shall be issued.”
(§ 12.21.C.10(i)(3).) However, the ordinance further provides the
permits can be issued if the property owner’s proposed
construction or addition either “meets the requirements of this
Subdivision 10” or obtains the approval of a ZA. (Ibid.) So, if the
property owner satisfies all subdivision 10 requirements,
including the minimum 20-feet roadway width as part of the
proposed construction, the permits may be issued. Here, the
8
original permits would have been properly issued to Shahin if she
had either widened Westwanda Drive or obtained a ZAD as
required by section 12.21.C.10(i)(3). The ordinance does not
contain the exemption urged by real parties.
II. New Trial Motion
On May 27, 2022, after the trial court rejected their
proffered new BOE clearance and supplemental building permit,
real parties filed a notice of intent to move for a new trial, or in
the alternative, to vacate the judgment, reopen the case for
further proceedings, and/or augment the record (motion for new
trial). On June 6, 2022, they filed the motion and, following a
hearing, the trial court denied the requested relief.5 Real parties
contend the ruling was prejudicial error.
A. Standard of Review
“The denial of a new trial motion is reviewed for an abuse
of discretion, except that a trial court’s factual determinations are
reviewed under the substantial evidence test.” (Minnegren v.
Nozar (2016) 4 Cal.App.5th 500, 514, fn. 7; see People v. Johnson
(2019) 8 Cal.5th 475, 524 [“We will not disturb a trial court’s
denial of a motion for a new trial unless ‘a “manifest and
unmistakable abuse of discretion” ’ clearly appears”].)
B. Newly Discovered Evidence
Code of Civil Procedure section 657 governs motions for
new trials. Among other grounds, a new trial may be granted for
newly discovered evidence.6 (Code Civ. Proc., § 657, subd. 4.) “A
5 The City joined in the relief sought by real parties but is
not a party to this appeal.
6 A new trial motion may also be granted based on
irregularity in the court proceedings, accident or surprise, newly
discovered evidence, insufficient evidence to justify the verdict or
9
new trial may only be granted based on newly discovered
evidence if reasonable diligence was exercised in the discovery of
the evidence, and the evidence is material to the moving party’s
case, meaning that it is likely to produce a different result.”
(Travoto v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319,
327.)
The trial court concluded the new BOE clearance and
supplemental building permit were not newly discovered
evidence within the meaning of the statute for two reasons:
First, citing Aron v. WIB Holdings (2018) 21 Cal.App.5th 1069,
the court determined the evidence did not meet the requirement
that it be in existence, but undiscovered, at the time of the trial
or hearing. (Id. at p. 1079.) According to their declarations, real
parties sought and obtained the evidence on March 8, 2022, well
after the court’s February 7, 2022 ruling on the merits.
Second, even if the new BOE clearance and supplemental
building permit were viewed as newly discovered evidence, real
parties failed to show they had exercised reasonable diligence in
discovering that evidence. Their declarations failed to state why
other decision, or for any error in law, which occurred at the trial
and to which the party making the new trial motion objected.
(Code Civ. Proc., § 657, subds. 1, 3, 4, 6 & 7.) Real parties listed
all these as grounds for their new trial motion. However, they
failed to develop any supporting arguments beyond vague and
conclusory assertions in the trial court and on appeal. (Howard
v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498,
523 [“Conclusory assertions of error are ineffective in raising
issues on appeal.”].) Likewise, legal claims made without legal
analysis and without citation of authority are deemed forfeited.
(People v. Stanley (1995) 10 Cal.4th 764, 793.) Having failed to
elaborate or support such claims, they are deemed forfeited.
10
the evidence was not acquired and presented prior to the trial on
the writ petition.
The trial court did not abuse its discretion by denying the
new trial motion. The new BOE clearance and supplemental
building permit were not newly discovered evidence under Code
of Civil Procedure section 657, subdivision 4. In Aron v. WIB
Holdings, supra, 21 Cal.App.5th 1069, we held to be “newly
discovered” the evidence must have been in existence at the time
of trial.7 (Id. at p. 1079.) “Implicit in that term is the concept
that the evidence existed, but remained undiscovered at the time
of trial.” (Ibid.) Here, the evidence, and the events upon which
the evidence was based, did not exist until weeks after the trial
court had ruled on the writ petition. The new BOE clearance and
supplemental building permit application amounted to newly
created evidence rather than newly discovered evidence for
purposes of a new trial motion. To hold otherwise would
encourage continuous requests for new trials by reason of
evidence developed or secured posttrial.
III. Mootness
It is real parties’ position this action was mooted by the
“newly discovered evidence” described above. They argue the
supplemental permit, on its face, was issued to “cure [LADBS’s]
7 In Aron v. WIB Holdings, supra, 21 Cal.App.5th at pages
1079–1080, we concluded the appellate division’s remittitur
affirming the underlying unlawful detainer judgment, issued
after the trial court’s order granting an anti-SLAPP motion and
dismissing tenant’s complaint was not “newly discovered
evidence” within the meaning of Code of Civil Procedure section
657, subdivision 4, because the remittitur did not exist at the
time of the anti-SLAPP hearing.
11
error” by “capturing a new BOE clearance.” In other words, real
parties now had to widen Westwanda Drive to 20 feet as Friends
demanded. According to real parties, Friends’s “one theory” in its
writ petition—that LADBS issued permits premised on an
erroneous BOE clearance—is no longer in controversy thanks to
the new clearance.
Moot cases are “ ‘[t]hose in which an actual controversy did
exist but, by the passage of time or a change in circumstances,
ceased to exist.’ ” (Wilson & Wilson v. City Council of Redwood
City (2011) 191 Cal.App.4th 1559, 1573.) “Regardless of the
nature of the intervening events that lead to a finding of
mootness, a common denominator in mootness cases is that the
court expressly or impliedly concludes there is no longer an
existing controversy before it upon which effectual relief may be
granted.” (Association of Irritated Residents v. Department of
Conservation (2017) 11 Cal.App.5th 1202, 1223.) Simply put, “[a]
case becomes moot when a court ruling can have no practical
impact or cannot provide the parties with effective relief.” (Simi
Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503.)
The trial court was not persuaded by real parties’
argument. Nor are we. First, the new BOE clearance and
supplemental permit did not prevent the court from granting
Friends effective relief from the original permits and BBSC
decision. Real parties’ proffered new evidence was not at issue in
the writ proceeding. Had that evidence consisted instead of
LADBS’s revocation of those prior permits or BBSC’s reversal of
that prior decision, real parties’ mootness argument would have
more traction. Additionally, the question whether the new
evidence “cured” prior deficiencies, as real parties claim, must be
administratively exhausted with the City before a civil suit can
12
be filed. (§§ 98.0403.1(b), 98.0403.2.) Finally, Friends’s writ
petition was not solely limited to challenging LADBS’s issuance
of the permits. The petition also sought to set aside BBSC’s
decision that LADBS had a ministerial duty to approve BOE’s
erroneous clearance, because BOE is a separate agency and had
not rescinded the clearance. Whether BBSC’s decision was a
prejudicial abuse of discretion would not have been rendered
moot by real parties’ new evidence.
Obviously, the supplemental permit is not irrelevant.
It is for the trial court to assess in the first instance whether
that permit sufficiently addresses the writ it has issued and
warrants discharge of that writ. All we hold here is that the
supplemental permit does not render this appeal moot.
13
DISPOSITION
The judgment is affirmed. Friends of Westwanda Drive
shall recover its costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
14