LeMons v. City of L.A. CA2/4

Filed 10/27/22 LeMons v. City of L.A. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
DAMIAN LeMONS et al., B310701
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BS165799)
v.
CITY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Gregory Keosian, Judge. Affirmed.
The Appellate Law Firm and Aaron Myers for Plaintiffs and
Appellants.
Michael N. Feuer, City Attorney, Terry P. Kaufmann Macias, Assistant
City Attorney, and Charles D. Sewell, Deputy City Attorney, for Defendants
and Respondents.
INTRODUCTION
Plaintiffs filed a verified petition for writ of mandate and complaint for
inverse condemnation against the City of Los Angeles and related local
entities challenging, in relevant part, the constitutionality of a one-year
moratorium on new development permits imposed on their real property.
After staying the inverse condemnation cause of action, the trial court denied
the writ petition and found that the moratorium did not implicate the
excessive fines clause of the Eighth Amendment to the United States
Constitution. The court then granted a motion for summary judgment on the
inverse condemnation cause of action, finding that the moratorium was not a
taking under the Fifth Amendment to the United States Constitution and
article 1, section 19 of the California Constitution. On appeal, plaintiffs
challenge the trial court’s rulings. We affirm the judgment.
FACTUAL BACKGROUND
The Property
Plaintiffs Damian and Denise LeMons own real property at 2516 13th
Avenue in Los Angeles (property), on which a two-story single family
residence was built in 1922. The property is located in a Historic
Preservation Overlay Zone (HPOZ), 1 specifically the West Adams Terrace
HPOZ. In 2002, the Planning Department designated the property as a
“contributing element” in the West Adams Terrace HPOZ. A “contributing
element” is defined as any building, structure, landscaping, or natural
1 The purpose of a HPOZ, governed and administered by a Historic
Preservation Board and Los Angeles Department of City Planning (Planning
Department), was to protect and preserve historically significant buildings
and neighborhoods. (See LAMC § 12.20.3(A), (D).)
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feature previously identified as contributing to the historic significance of a
particular HPOZ. (LAMC § 12.20.3(B)(6).)
The City Permits
Rehabilitation and repair work performed on a contributing element
must conform to the applicable preservation plan and be approved by the
Historic Preservation Board. (Id., § 12.20.3(D), (I).) A property owner who
wants to demolish, remove, or relocate a contributing element must obtain a
certificate of appropriateness (COA) from the Planning Department. (LAMC
§ 12.20.3(K).) A COA may only be obtained after the plan to demolish or
remove a contributing element is presented to the members of the Historic
Preservation Board and the Cultural Heritage Commission and subsequently
approved by the Planning Department. The City may not approve demolition
of a contributing element absent a public hearing.
On November 25, 2014, plaintiffs obtained approval from the West
Adams Preservation Board and Planning Department to perform “conforming
work” (rehabilitation and repair) on the property. On December 24, 2014, the
Department of Building and Safety (DBS) issued a permit to plaintiffs to
perform the approved repair and rehabilitation work.
On February 10, 2015, plaintiffs obtained a second permit from the
Planning Department for “water damage, termite damage/dry rot repair less
than 10% of replacement cost of residential buildings.” This permit was an
“express permit” for minor repair work that did not require the submission of
plans. After issuance of the February 2015 permit, plaintiffs mostly
demolished the two-story single family dwelling on the property, leaving only
a “small portion of the first story wood floor and foundation.”
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Administrative Proceedings
On March 13, 2015, and on April 21, 2015, DBS issued “orders to
comply” to plaintiffs to stop demolition work at the property.
Following notice to plaintiffs, DBS conducted a public hearing on
January 28, 2016, before a hearing officer to determine whether plaintiffs
had performed demolition work without a permit in violation of Los Angeles
Municipal Code section 91.106.1.1, and to determine whether to impose a
moratorium on the issuance of building permits for up to five years as
authorized by Los Angeles Municipal Code section 91.106.4.1(10).2
On April 4, 2016, DBS issued a written determination, based on the
hearing officer’s report, that plaintiffs had “mostly demolished” the structure
and had performed demolition work far in excess of any work authorized by
their permits. DBS then imposed a one-year moratorium on the issuance of
any permits for new development on the property that would expire March
12, 2016.
Plaintiffs challenged DBS’s decision to the Board of Building and
Safety Commissioners (the Board). Following a public hearing on July 12,
2016, the Board upheld the DBS’s findings and denied the appeal.
2 Los Angeles Municipal Code section 91.106.1.1 states, in pertinent
part: “No person shall erect, construct, alter, repair, demolish, remove or
move any building or structure . . . unless said person has obtained a permit
therefor from the department.” In turn, Los Angeles Municipal Code section
91.106.4.1(10) provides: “The department shall have the authority to
withhold a building permit or relocation permit for a site if the department
determines that demolition or relocation work has been done on the site
without the benefit of required demolition or relocation permits. If the
department, after notice and hearing, makes this determination, the
department shall also have the authority to record an affidavit with the
County Recorder stating that no permits for any new development shall be
issued on the property for a period of five years.”
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PROCEDURAL HISTORY
On October 6, 2016, plaintiffs filed a verified petition for writ of
mandate (Code Civ. Proc., §§ 1085, 1094.5) and complaint for inverse
condemnation (U.S. Const., 5th & 8th Amends.; Cal. Const., art. I, § 19)
against defendants City of Los Angeles, City of Los Angeles Department of
City Planning, City of Los Angeles Office of Historic Resources, City of Los
Angeles Department of Building and Safety, City of Los Angeles Board of
Building and Safety Commissioners (collectively, the City). As to the
mandate petition, plaintiffs alleged, in pertinent part, that the one-year
moratorium on new development permits imposed on plaintiffs violated the
excessive fines clause of the Eighth Amendment to the United States
Constitution. As to the inverse condemnation cause of action, plaintiffs
alleged the moratorium constituted a taking without just compensation in
violation of the State and Federal Constitutions. Pursuant to a stipulation by
the parties and a finding of good cause, the trial court ordered the complaint
stayed pending resolution of the writ petition.
On December 11, 2018, the trial court conducted a hearing on the writ
petition and took the matter under submission. The court later denied the
petition, finding that the excessive fines clause of the Eighth Amendment did
not apply as a matter of law to the moratorium because the City did not
impose a fine. Defendants then moved for summary judgment on the inverse
condemnation cause of action, and on November 17, 2020, the trial court held
a hearing on the motion. In a written ruling, the court granted the motion,
finding that the moratorium did not constitute a taking under the State or
Federal Constitutions; rather, it was a separate government action imposing
a penalty for a violation of the Los Angeles Municipal Code.
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On December 2, 2020, judgment was entered against plaintiffs and in
favor of the City. Plaintiffs timely appealed.
DISCUSSION
I. Petition for Writ of Mandate
Plaintiffs challenge the trial court’s denial of the writ petition on the
ground that the one-year moratorium on new development permits imposed
by the City violated the excessive fines clause of the Eighth Amendment. We
disagree.
The Eighth Amendment of the United States Constitution provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” (U.S. Const., 8th Amend.) The
excessive fines clause “‘limits the government’s power to extract payments,
whether in cash or in kind, “as punishment for some offense.”’ (Austin v.
United States (1993) 509 U.S. 602, 609–610.)” (United States v. Bajakajian
(1998) 524 U.S. 321, 328.)
Kim v. United States (9th Cir. 1997) 121 F.3d 1269 (Kim) is instructive.
In Kim, the Ninth Circuit held that a grocery store owner’s permanent
disqualification from the federal food stamp program was not an excessive
fine prohibited by the Eighth Amendment “because it is not cash or in kind
payment directly imposed by, and payable to, the government.” (Id. at p.
1276.) Similarly, a one-year moratorium on new development permits does
not require plaintiffs to pay the City in cash or “in kind payment.” Plaintiffs
fail to distinguish Kim from the case at bar. Accordingly, the moratorium is
not subject to an excessive fine analysis.
Seeking to overcome this hurdle, plaintiffs cite cases involving
excessive fines challenges to forfeitures; that is, government seizures of
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personal or real property. A forfeiture may be considered a payment to the
government and thus may be subject to excessive fines analysis under the
Eighth Amendment. The forfeiture cases on which plaintiffs rely, however,
are inapposite. Here, the City did not attempt to seize plaintiffs’ personal or
real property under the forfeiture laws. Rather, the City temporarily
withheld a permit from plaintiffs for new development on the property.
Therefore, as the trial court properly found, the excessive fines clause of the
Eighth Amendment does not apply to the moratorium.
II. Motion for Summary Judgment
Plaintiffs challenge the trial court’s order granting the City’s motion for
summary judgment on the inverse condemnation cause of action. Plaintiffs
contend that the one-year moratorium on new development permits imposed
by the City constituted a regulatory taking entitling them to just
compensation. Plaintiffs further contend the inverse condemnation cause of
action should have been tried before a jury. These contentions have no merit.
Under the takings clause in the Fifth Amendment of the United States
Constitution, and article 1, section 19, of the California Constitution, the
government is prohibited from taking private property for public use without
just compensation.3 (Cal. Const., art. 1, § 19; U.S. Const., 5th Amend.; Lingle
3 The takings clause of the Fifth Amendment to the United States
Constitution provides, in pertinent part: “nor shall private property be taken
for public use, without just compensation.” The analogous provision of the
California Constitution, article I, section 19, reads in pertinent part: “Private
property may be taken or damaged for public use only when just
compensation, ascertained by a jury unless waived, has first been paid to, or
into court for, the owner.” Although the takings clause of the California
constitution affords somewhat broader protection that its federal counterpart
by also requiring compensation when property is damaged for public use,
apart from this difference, the state takings clause is construed congruently
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v. Chevron U.S.A. Inc. (2005) 544 U.S. 528, 537 (Lingle); Kavanau v. Santa
Monica Rent Control Bd. (1997) 16 Cal.4th 761, 773; Shaw, supra, 170
Cal.App.4th at p. 259.)
“Courts have consistently held that [the government] need not provide
compensation when it diminishes or destroys the value of property by
stopping illegal activity or abating a public nuisance.” (Keystone Bituminous
Coal Assn. v. DeBenedictis (1987) 480 U.S. 470, 492, fn. 22.) Similarly,
“[w]hen property has been seized pursuant to the criminal laws or subjected
to in rem forfeiture proceedings, such deprivations are not ‘takings.’” (Acadia
Technology, Inc. v. United States (Fed. Cir. 2006) 458 F.3d 1327, 1331;
Calero-Toledo v. Pearson Yacht Leasing Co. (1974) 416 U.S. 663, 680; Van
Oster v. State of Kansas (1926) 272 U.S. 465, 468.) The United States
Supreme Court has a “longstanding practice” of neither requiring
compensation for, nor finding unconstitutional, seizures, forfeitures, and
abatements of personal property “to deter illegal activity.” (Bennis v.
Michigan (1996) 516 U.S. 442, 453.) The cases authorizing such government
action without compensation are “‘firmly fixed in the punitive and remedial
jurisprudence of the country.’” (Id. at p. 453.)
Here, the one-year moratorium on new development permits did not
constitute a taking pursuant to the State and Federal Constitutions. The
moratorium was a punitive measure imposed on plaintiffs for a violation of
Los Angeles Municipal Code section 91.106.1.1 (i.e., unpermitted demolition),
not a “taking for public use” as traditionally understood under constitutional
takings jurisprudence. (Lingle, supra, 544 U.S. at p. 536 [private property
shall not “‘be taken for public use, without just compensation’”].)
with the federal clause. (Shaw v. County of Santa Cruz (2008) 170
Cal.App.4th 229, 260 (Shaw).)
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Moreover, “[t]he fundamental policy underlying the concept of inverse
condemnation is that the costs of a public improvement benefiting the
community should be spread among those benefited rather than allocated to
a single member of the community.” (Pacific Bell v. City of San Diego (2000)
81 Cal.App.4th 596, 602.) In contrast, the purpose of a penalty such as the
moratorium at issue here is to impose particular burdens upon the violators.
In addition, there is no benefit transferred to the public at large by
temporarily withholding a building permit from plaintiffs. Thus, allowing
plaintiffs to obtain compensation for the moratorium is not only inconsistent
with the purpose of the takings clause but put plainly, rewards plaintiffs’
unlawful conduct. (See Bennis v. Michigan, supra, 516 U.S. at p. 452
[forfeiture imposes “‘an economic penalty, thereby rendering illegal behavior
unprofitable’”].) We therefore conclude that no taking has occurred requiring
just compensation under the State and Federal Constitutions.
Plaintiffs’ argument that the inverse condemnation cause of action
should have been tried before a jury is equally unavailing.4 First, as
4 In support of this argument, plaintiffs contend there are triable issues
of material fact as to whether: (1) “demolition” in Los Angeles Municipal Code
section 91.106.4.1(10) was properly defined; and (2) the structure on the
property was “demolished.” The validity of the ordinance and its application
to plaintiffs is assumed because of the inherent nature of the takings
analysis. As the United States Supreme Court explained, “an inquiry [into
the regulation’s underlying validity] is logically prior to and distinct from the
question whether a regulation effects a taking, for the Takings Clause
presupposes that the government has acted in pursuit of a valid public
purpose. . . . [The Clause] does not bar government from interfering with
property rights, but rather requires compensation ‘in the event of otherwise
proper interference amounting to a taking.’ [Citation.] Conversely, if a
government action is found to be impermissible . . . that is the end of the
inquiry. No amount of compensation can authorize such action.” (Lingle,
supra, 544 U.S. at p. 543.) Thus, given plaintiffs are seeking just
compensation, they are foreclosed from contending there are triable issues of
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discussed above, the moratorium did not implicate constitutional takings
jurisprudence as a matter of law. Second, “[e]ven when the question of
liability in an inverse condemnation proceeding involves the resolution of
factual issues, there is no right to a jury trial.” (Dina v. People ex rel. Dept. of
Transportation (2007) 151 Cal.App.4th 1029, 1044; accord, San Diego Gas &
Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 951 [“There is no right to
jury trial on the issue whether there has been a taking in the first instance”];
see Hensler v. City of Glendale (1994) 8 Cal.4th 1, 15 [“the right to a jury trial
applies in inverse condemnation actions, but that right is limited to the
question of damages”].) Thus, the trial court’s determination that plaintiffs
had not established a taking did not deprive them of any right to a jury trial.
(See Dina v. People ex rel. Dept. of Transportation, supra, at p. 1045.)
DISPOSITION
The judgment is affirmed. The City is awarded its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.
material fact as to the validity of the City’s taking (i.e., the ordinance and its
application to them).
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