Roth v. City of Hermosa Beach CA2/8

Filed 12/15/22 Roth v. City of Hermosa Beach CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MARK ROTH, B309941
Cross-complainant and (Los Angeles County
Appellant, Super. Ct. No. YC072628)
v.
CITY OF HERMOSA BEACH et al.,
Cross-defendants and
Respondents.
APPEAL from judgments of the Superior Court of Los
Angeles County, Deirdre H. Hill, Judge. Affirmed.
Alda J. Shelton for Cross-complainant and Appellant
Best Best & Krieger, Michael Jenkins and Gregg W.
Kettles for Cross-defendant and Respondent City of Hermosa
Beach.
Phillips, Spallas & Angstadt, Michael R. Halvorsen and
Sandra L. Block for Cross-defendants and Respondents Kihn
Luan Tran and Van Hong Tran, as Trustees, etc.
_________________________
2
FACTUAL AND PROCEDURAL BACKGROUND
This is the second appeal in this matter. (See 710 and
712 Ardmore, LLC v. Roth (Nov. 7, 2019, B293766) [non-pub.].)
We include relevant information from our prior opinion.
A. Events Leading to Civil Lawsuit
710 and 712 Ardmore, LLC (Ardmore) owned a duplex
(Property) at 710–712 Ardmore Avenue in Hermosa Beach,
California. Patti Nernberg is Ardmore’s managing member and
sole member. Appellant Mark Roth (Roth) owns the residential
property next door at 604 8th Street.
In 2015, Ardmore pursued plans to build a two-unit
condominium and submitted an application for a conditional-use
permit. A condominium was an allowed use, but a conditional-
use permit was required to obtain a building permit. A resolution
of the Planning Commission of the City of Hermosa Beach
(Planning Commission) and a public hearing were required for
Ardmore to obtain approval of the conditional use.
On October 20, 2015, a public hearing was held on
Ardmore’s permit application, satisfying public notice
requirements and allowing for public comment. That same day,
the Planning Commission issued a conditional-use permit and a
resolution approving the specific development plan. The
resolution provides, in part: “The development and continued use
of the property shall be in conformance with submitted plans
received and reviewed by the Planning Commission at its
meeting on October 20, 2015 . . . . The Community Development
Director may approve minor modifications that do not otherwise
conflict with the Hermosa Beach Municipal Code or requirements
of this approval.” (Italics added.)
3
In 2016, construction of the condominium units began. In
2017, Ardmore completed the construction of an exterior stairway
to the second floor on the north side of the Property, right next to
Roth’s property. Roth believed the stairway violated zoning
ordinances and the Hermosa Beach Municipal Code1. Roth hired
an attorney to sue either the City of Hermosa Beach (the City) or
Ardmore.
Revised plans were submitted by Ardmore and Nernberg,
which the City approved on November 7, 2017.
On December 26, 2017, Roth filed a claim with the City for
damages and removal of the stairs. He also asked the City not to
grant a certificate of occupancy for the Property. In January
2018, Roth attended two city council meetings about his claim.
The City ultimately disagreed with Roth and issued the
certificate of occupancy to Ardmore in January 2018.
On January 2, 2018, Roth placed a sign viewable by a
person standing on the landing of the Property stairs. The sign
stated: “I have filed a complaint with the city to demolish the
stairs at 712 Ardmore as an illegal intrusion into the required
rear yard. If the city does not order them removed, I will sue the
city and the property owner.”
B. Ardmore’s Complaint and Amended Complaint
On January 19, 2018, Ardmore filed a civil action against
Roth. In the operative first amended complaint (FAC) filed April
2, 2018, Ardmore alleged three causes of actions: 1) intentional
interference with prospective economic advantage; 2) preliminary
1 Further undesignated statutory references are to the
Hermosa Beach Municipal Code, unless otherwise stated.
4
and permanent injunction and damages; and 3) nuisance. The
FAC alleged Roth interfered with Ardmore’s efforts to sell the
Property’s two units by posting the sign to discourage buyers.
On February 22, 2018, Roth replaced the first sign with a
second sign which stated: “The owner of 712 Ardmore has sued
me in Torrance Superior Court Case number YC072628, to have
the court rule whether the exterior stairs to 2nd floor of 712
Ardmore are illegal. If the owner loses the case, the stairs will
have to be torn down and the door sealed off. Have you been
informed of the lawsuit and any consequences to you including
becoming part of this lawsuit?”
On March 9, 2018, the City denied Roth’s claim.
On June 6, 2018, Kihn Luan Tran and Von Hong Tran—as
trustees of the Tran Family Trust—purchased one of the
condominium units at the Property, 712 Ardmore. We
collectively refer to the new owners of 712 Ardmore as the Tran
family or the Trans.
C. Roth’s Amended Cross Complaint
On September 6, 2018, Roth filed a cross complaint against
Ardmore, the City, and the Tran family. On June 23, 2020, Roth
filed the operative first amended cross complaint (FACC). Roth
alleged three causes of action in his FACC: 1) mandamus against
the City; 2) public nuisance against the City, the Trans, Ardmore,
and newly named cross-defendant Nernberg; and 3) damages for
removal of survey markers against Ardmore and Nernberg.
We recite the allegations relevant only to the mandamus
and public nuisance claims before us on appeal.
1. Mandamus Against the City
Roth alleged the recently built stair structure next to the
property line between his lot and 710–712 Ardmore did not
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comply with provisions of the conditional-use permit and
development plans approved by the City in 2015 and also violated
the City’s zoning rules on setbacks, lot coverage, and height.
Roth sought a writ of mandate to compel the City “to perform its
ministerial duty to cause the [Property] to comply with the
conditions approved in the grant of the Conditional-Use Permit
and the zoning ordinance, by ordering the removal of the stair
structure and wall and enforcing its order.”2
Roth alleged the approved plans show the proposed grade
elevation of dirt at the base of the first floor and the base of the
second floor to be the same; he alleged this “means that anyone
stepping out of the door and onto the landing will be stepping
onto ‘grade,’ i.e., dirt, not onto any stair structure.” This plan
required “hauling and compacting” of “a large amount of new dirt
to provide the approximately 8’5.5”-high ‘Proposed Grade’ at the
second floor door.” Sloping dirt would have to be placed “and
compacted under the steps going down to the first floor ground
level . . . to make the steps always be resting on grade.” Instead,
the builders built an “unapproved stair structure” with numerous
2 Title 17 of the Hermosa Beach Municipal Code (sections
17.02.010 through 17.74.120) “shall be known as the zoning
ordinance.” (§ 17.02.020.) The purpose of Title 17 provisions is
expressly provided: “A precise land use plan for the city is
adopted and established to serve the public health, safety and
general welfare and to provide the economic and social
advantages resulting from an orderly planned use of land
resources.” (§ 17.02.010.) “In interpreting and applying the
provisions of this title, they shall be held to be the minimum
requirement for the promotion of the public health, safety,
comfort, convenience and general welfare.” (§ 17.02.030.)
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steps to a landing in front of the door on the second floor. The
landing “must be reached by a sloping ramp, since no steps are
shown.”
In addition, the void beneath the stairs and landing was
filled with wood framing and foam rather than dirt. The
conditional-use permit did not permit “room under the stairs or a
foam-filled room in the rear-yard setback area. . . . There should
have been dirt instead of a room of any kind, pursuant to the
grant[ed] . . . Conditional-Use Permit 15-10.”
Roth also alleged the landing and its supporting left wall
“went to within 3 [inches] of the property line,” violating the five-
feet rear yard setback requirement. Section 17.12.020D required
every lot to have “a rear yard not less than five (5) feet in depth.
The second floor can be three (3) feet from the property line.” The
staff report also provided that the rear yard setback requirement
was five feet at the first floor and 3 feet at the second floor. The
unobstructed rear yard of 712 Ardmore was only three inches
wide at the first and second floor.
Roth next alleged the placement of a perimeter wall of 12
feet one and one-half inches as part of the unapproved stair
structure violated the rear-yard maximum perimeter wall height
of six feet set forth in the staff report. He referred to section
17.46.130, which provides that a wall or fence “not more than six
feet in height may be located anywhere on the lot.”
Roth then cited section 17.12.060, which provides that all
buildings, including accessory structures, shall not cover more
than 65 percent of the area of the lot. The Planning
Commission’s staff report provides the maximum lot coverage at
65 percent and that the plans submitted by Ardmore showed the
project was at 64.9 percent. He alleged the calculation for the
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building square footage failed to include the lot coverage
resulting from the stair structure. The stair structure caused the
condominium project to exceed the permitted maximum of
65 percent lot coverage.
Roth alleged the City “has not ordered the violating
elements removed,” and instead, issued a certificate of occupancy
and approved the structure “despite the non-compliance.” “The
dirt/grade levels, stair structure [and its] perimeter wall, and
guard-rail elements that were approved in the Revised Plans
were inconsistent with, and not approved, in the Conditional-Use
Permit.” These were “not minor modifications” of the approved
plan. Roth asked the trial court to order the City to remove the
stair structure and wall and to enforce its removal order.
“Compelling removal of the foregoing violations . . . was a
ministerial act of the City. It had no discretion to allow the rear-
yard violations of the project as-built . . . to continue.”
2. Public Nuisance Against the Trans 3
Roth’s cause of action for public nuisance was alleged on
two theories—general theory of public nuisance and public
nuisance per se.
The FACC alleged: The “violations of the Conditional-Use
Permit and the zoning ordinance constitute a public nuisance.”
The City authorized and approved “the construction that violated
the Conditional-Use Permit” and “continued a condition that is
an obstruction to the free use of property so as to interfere with
the comfortable enjoyment of life or property.” This condition
3 The public nuisance claim incorporated by reference the
permit violations in the mandamus cause of action.
8
“affects a substantial number of people at the same time and is a
public nuisance.”
The FACC further alleged: The “condition is also a per se
public nuisance under . . . section 17.02.030, since the public
health, safety, comfort, and general welfare have been violated.”
Roth suffered a “special injury to himself that is different from
the harm suffered by the general public.” For instance, the
“required separation of his property from the Ardmore lot does
not exist.” Roth’s bedroom window is five feet six inches away
from the stairway used by the residents and guests of 712
Ardmore to reach the second-floor entrance of the condominium.
“People can make noise at all hours on the stairs. . . . They can
loom over [his space] on the landing and look directly into his
yard . . . . They can hear what he says, see what he is doing, and
take pictures of him. There is no privacy.” “The seriousness of
the harm outweighs the social utility of the conduct.” The City
“approved the public nuisance instead of ordering it abated,
which it had a ministerial duty to do.”
While Ardmore and Nernberg created the public nuisance,
the Tran family “are continuing it.” Roth sought damages for
“$100 a day for every day in which the violations continue until
removed, due to inconvenience and lack of privacy.” If an
injunction requiring the removal of the stair structure and
supporting wall is not granted, Roth will “continue to suffer loss
of use and enjoyment of his property.”
Roth included as exhibits to the FACC: the Planning
Commission’s October 20, 2015 resolution approving the permit;
the condominium development plans approved via the resolution;
the Planning Commission’s staff report; photos of the stair
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structure and guard rail; the November 7, 2017 revised plans;
and Roth’s December 26, 2017 claim against the City.
D. Proceedings in the Trial Court
The City and the Trans filed demurrers to the causes of
action for mandamus and public nuisance, which Roth opposed.
The demurrers were set to be heard on October 20, 2020.
On October 13, 2020, Roth filed an ex parte application to
continue the October 20, 2020 hearing on the demurrers to
November 17, 2020—the reserved hearing date on Roth’s not-yet-
filed motion for sanctions against the City and its counsel under
Code of Civil Procedure section 128.7 for advancing a
“misrepresentation to the court and waste its time on theories
that are false.”4 Roth explained that after filing his opposition to
the demurrers, he received on August 31, 2020 “interrogatory
responses verified by the City’s Code Enforcement Official who
admitted that the stairs were not approved in 2015” and that the
“changes that it approved in 2017 [were] ‘minor modifications.’ ”
Roth included a copy of the interrogatory responses as an exhibit
to his motion for sanctions. Roth argued his motion for sanctions
“may affect the demurrers” because it showed the City’s “entire
theory of the demurrer is false.” Roth contended the requested
continuance “would save judicial resources [as] the demurrer and
the [Code of Civil Procedure section] 128.7 motion [would be]
heard at the same time.”
4 On September 25, 2020, Roth served his motion for
sanctions on the City. Due to Code of Civil Procedure section
128.7’s 21-day safe harbor provision, Roth could not file the
motion until October 21, 2020.
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The City’s response to Roth’s special interrogatories set no.
one were verified by Robert J. Rollins who stated: “The
conceptual project plans . . . approved by City Planning
Commission Resolution No. 15-27 show at 712 Ardmore a rear
yard, with the stairs, landing, and wall at the property line.” The
conceptual plans show “the area where the stairs are located as
not being a structure and instead being conceptually shown as a
stairs and a walkway on a finish grade.” “The project, including
the stair steps and landing at the entry to the dwelling, were
built pursuant to plans approved by the City.”
Rollins stated: “During the course of constructing this
project, the builder proceeded to build the landing and stepping
feature as a wood framed structure . . . rather than following the
construction method for the landing and steps as shown on the
plans. When brought to the City Building Official’s attention
. . . , it was determined the use of wood structure to frame the
landing and stepping feature . . . was not acceptable both from a
Building and Zoning Code perspective.” Thus, the City “required
the builder to make the outside wall of the wood structure fire
rated so it would comply with the Building Code.” The builder
was requested to revise the plans to reflect the change. The
builder “proposed to fill the void with an industrial foam product
rather than dirt. This was a practical consideration . . . as the
industrial foam product proposed would be . . . resistant to fire
and insects.” The City directed that the void be filled “with as
much foam as could be pumped into it, which may be as much as
85-90% of the void.”
Rollins further stated: The City “approved this approach as
a resolution to the problem and the builder implemented it as
revised. The changes to the original plans amounted to a minor
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modification of them. The outcome in terms of the physical
presence is the same as if it were steps and landing on the
ground as contemplated by the initial approval. This mid-course
correction, given the circumstances, was a reasonable and fair
solution for this project to proceed to completion. The stair steps
and landing at the entry to the dwelling were built on a
framework that is the equivalent of finish grade.”
The City, the Trans, and Ardmore each opposed Roth’s ex
parte request for a continuance of the hearing on the demurrers.
On October 15, 2020, the court “review[ed] the ex parte
application and opposition in chambers and off the record,” and
denied the request to continue the hearing on the demurrers.
The court then sustained both demurrers without leave to
amend. On November 12, 2020, the court entered an order of
dismissal of the FACC against the Tran family. On November
16, 2020, the court entered a judgment of dismissal as to the City.
Roth timely appealed.
DISCUSSION5
Roth argues three points on appeal. First, he argues the
trial erred in sustaining the City’s demurrer to the cause of
action for mandamus without leave to amend. Second, he argues
the trial court erred in sustaining the Trans’ demurrer to the
5 On June 9, 2022, the City filed a request for judicial notice.
The two pleadings attached to the request for judicial notice were
already filed in the trial court and part of the record on appeal.
However, as “the copy quality [of the two documents] is low,” the
City included a more legible copy. We grant the request. (Cal.
Rules of Court, rule 8.252; Evid. Code §§ 452, subd. (d), and 459.)
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public nuisance cause of action without leave to amend. Third,
Roth argues the trial court erred in denying his ex parte
application to continue the October 20, 2020 hearing on the
demurrers.
A. The Trial Court Properly Sustained the Demurrer Without
Leave to Amend as to the Mandamus Cause of Action.
Roth argues the court erred in finding Roth did not
sufficiently plead a cause of action for mandamus. Roth further
argues the claim is not moot and not barred by the failure to
exhaust administrative remedies. Roth finally argues he can
amend the cross-complaint to allege that the City’s exercise of
discretion was unlawful.
1. Standard of Review
A demurrer tests the legal sufficiency of the challenged
pleading. (Milligan v. Golden Gate Bridge Highway &
Transportation Dist. (2004) 120 Cal.App.4th 1, 5.) We review de
novo a trial court’s ruling on a demurrer. (Dudek v. Dudek (2019)
34 Cal.App.5th 154, 163 (Dudek).) When a demurrer is
sustained, we determine whether the complaint states facts
sufficient to constitute a cause of action. (Blank v. Kirwan (1985)
39 Cal.3d 311, 318 (Blank); Beason v. Griff (1954) 127 Cal.App.2d
382, 386–387.) The judgment of dismissal after a sustained
demurrer must be affirmed if the challenged pleading fails to
plead an essential element or the allegations disclose some
defense or bar to recovery. (Brown v. Crandall (2011)
198 Cal.App.4th 1, 8.) We are to affirm if any of the grounds for
demurrer raised by the defendant is well taken and disposes of
the cross-complaint. (Aubry v. Tri-City Hospital Dist. (1992)
2 Cal.4th 962, 967.)
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We accept as true all material facts properly pleaded in the
cross-complaint, but do not assume the truth of contentions,
deductions, or conclusions of fact and law. (Dudek, supra,
34 Cal.App.5th at p. 163; Estate of Holdaway (2019)
40 Cal.App.5th 1049, 1052.) “We give the complaint a reasonable
interpretation and treat the demurrer as admitting all material
facts properly pleaded that are not inconsistent with other
allegations, exhibits, or judicially noticed facts.” (Morris v.
JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.)
The allegations that we accept as true necessarily include the
contents of any exhibits attached to the complaint, and in the
event of a conflict between the pleading and an exhibit, the facts
contained in the exhibit take precedence over and supersede any
inconsistent or contrary allegations in the pleading. (Jibilian v.
Franchise Tax Bd. (2006) 136 Cal.App.4th 862, 864, fn. 1;
Building Permit Consultants, Inc. v. Mazur (2004)
122 Cal.App.4th 1400, 1409; see Schmier v. City of Berkeley
(2022) 76 Cal.App.5th 549, 553, fn. 4.)
In addition, “ ‘[w]hen a demurrer is sustained without leave
to amend, “we decide whether there is a reasonable possibility
that the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse; if not, there has
been no abuse of discretion and we affirm.” ’ ” (Dudek, supra,
34 Cal.App.5th at p. 163.) Here, Roth shoulders the burden to
show a reasonable possibility the operative complaint can be
amended to state a cause of action. (Id. at pp. 163–164;
Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 902).
Roth can make this showing in the first instance to the appellate
court. (Roman v. County of Los Angeles (2000) 85 Cal.App.4th
316, 322.)
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2. Applicable Law
Code of Civil Procedure section 1085, subdivision (a)
provides: “A writ of mandate may be issued by any court to any
inferior tribunal, corporation, board, or person, to compel the
performance of an act which the law specially enjoins, as a duty
resulting from an office, trust, or station.” A writ of mandate
“ ‘will issue against a county, city, or other public body.’ ” (Venice
Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th
1547, 1558.)
Three basic requirements are essential to the issuance of
the writ: 1) A clear, present and usually ministerial duty upon
the part of the respondent (here, the City); 2) a clear, present and
beneficial right in the petitioner (here, Roth) to the performance
of that duty; and 3) the absence of any other plain, speedy, and
adequate remedy. (Monterey Coastkeeper v. Central Coast
Regional Water Quality Control Board (2022) 76 Cal.App.5th
1, 18; County of San Diego v. State of California (2008)
164 Cal.App.4th 580, 593 (County of San Diego).)
As to the first requirement, it is settled that traditional
mandamus only lies to compel the performance of a clear, present
ministerial duty. (Sierra Club v. Department of Parks &
Recreation (2012) 202 Cal.App.4th 735, 740; State of California v.
Superior Court (1974) 12 Cal.3d 237, 247.) “A ministerial act is
an act that a public officer is required to perform in a prescribed
manner in obedience to the mandate of legal authority and
without regard to his [or her] own judgment or opinion
concerning such act’s propriety or impropriety, when a given
state of facts exists. Discretion . . . is the power conferred on
public functionaries to act officially according to the dictates of
their own judgment.” (Rodriguez v. Solis (1991) 1 Cal.App.4th
15495, 501–502; AIDS Healthcare Foundation v. Los Angeles
County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700
(AIDS Healthcare).) “Mandamus cannot be used to compel the
exercise of discretion in a particular manner or to order a specific
result when the underlying decision is purely discretionary.” (US
Ecology, Inc. v. State of California (2001) 92 Cal.App.4th 113,
138; see AIDS Healthcare, at pp. 701–702 [“Mandamus does not
lie to compel a public agency to exercise discretionary powers in a
particular manner, only to compel it to exercise its discretion in
some manner”].)
As to the second requirement, as a general rule, a party
must be “beneficially interested” to seek a writ of mandate.
(Code Civ. Proc., § 1086.) The requirement that the party be
beneficially interested has been generally interpreted to mean
that one may obtain the writ only if the person has some “ ‘special
interest to be served or some particular right to be preserved or
protected over and above the interest held in common with the
public at large. . . .’ [Citation.] The beneficial interest must be
direct and substantial.” (Save the Plastic Bag Coalition v. City of
Manhattan Beach (2011) 52 Cal.4th 155, 165; see Citizens for
Amending Proposition L v. City of Pomona (2018) 28 Cal.App.5th
1159, 1173 (Citizens for Amending).) This standard is equivalent
to the federal injury-in-fact test, which requires a party to prove
by a preponderance of the evidence that it has suffered an
invasion of a legally protected interest that is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or
hypothetical. (Citizens for Amending, at p. 1173; Associated
Builders and Contractors, Inc. v. San Francisco Airports Com.
(1999) 21 Cal.4th 352, 362.)
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As to the third requirement, as a general rule, a writ “must
be issued in all cases where there is not a plain, speedy, and
adequate remedy, in the ordinary course of law.” (Code Civ.
Proc., § 1086.) Where the petitioner is pursuing traditional
mandamus, the “ ‘exhaustion requirement speaks to whether
there exists an adequate legal remedy. If an administrative
remedy is available and has not yet been exhausted, an adequate
remedy exists and the petitioner is not entitled to extraordinary
relief.’ ” (Eight Unnamed Physicians v. Medical Executive Com.
(2007) 150 Cal.App.4th 503, 511.)
3. Analysis
We review the FACC to ascertain whether it states facts
sufficient to constitute a cause of action for mandamus relief.
First, we must determine if the FACC adequately alleged
that the City has a clear, ministerial duty imposed by law.
The FACC alleged the stair structure violates height,
setback, and lot coverage requirements of the conditional-use
permit and the Hermosa Beach Municipal Code/zoning ordinance,
as interpreted by Roth. Roth sought a writ of mandate “to compel
the City of Hermosa Beach to perform its ministerial duty to
cause the [Property] to comply with the conditions approved in
the grant of the Conditional-Use Permit and the zoning
ordinance, by ordering the removal of the stair structure and wall
and enforcing its order.” “Compelling removal of the foregoing
violations . . . was a ministerial act of the City. It had no
discretion to allow the rear-yard violations of the project as-built
in late November, 2017 or early December, 2017, to continue.”
Roth argues disapproving the stairway was a ministerial
act; “a mere nondiscretionary operational decision implementing
a policy decision.” He cites Rutgard v. City of Los Angeles (2020)
17
52 Cal.App.5th 815, which provides, “ ‘A ministerial duty is an
obligation to perform a specific act in a manner prescribed by law
whenever a given state of facts exists, without regard to any
personal judgment as to the propriety of the act.’ ” (Id. at p. 824.)
Roth argues, “No personal judgment was involved. A given state
of facts existed—clear non-compliance—triggering a ministerial
duty to disapprove.” The City had a ministerial duty to make “a
mere operational decision and withhold approval of the stairs.”
The City argues, however, that it may not be enjoined to
enforce the law in any particular way. “With a number of options
available to achieve code compliance, however, even assuming
the wall, stairway, and landing conflicted with the City’s
[M]unicipal [C]ode, the City does not have a duty to pursue any
one enforcement option in particular and cannot be ordered to do
so.” In support of its position, the City cites Riggs v. City of
Oxnard (1984) 154 Cal.App.3d 526 (Riggs). The Court of Appeal
in Riggs considered appellant’s claim that a “zoning violation
imposes a duty upon the respondent [City of Oxnard] to issue a
criminal citation and enjoin the continued use of the property.”
(Id. at p. 530.) The Riggs court rejected this claim, noting that
the relevant zoning ordinance’s use of the term “may” indicated
that prosecutorial enforcement was discretionary rather than
mandatory. (Ibid.)
Similarly, in this case, the Hermosa Beach Municipal Code
provides the City with a variety of options for addressing the
allegedly non-compliant stair structure and wall. Section
17.74.010 specifies that violations of title 17 are “subject to the
administrative penalty provisions of Chapter 1.10,” i.e., the use of
administrative citations and penalties; however, administrative
citations/penalties “shall not prevent the use of other methods of
18
enforcement or abatement as provided by this Code, including
but not limited to criminal and civil actions.” (§ 1.10.010.)
Section 17.74.020 provides that each person/corporation “found
guilty of a violation shall be deemed guilty of a separate offense
for every day during any portion of which any violation of any
provision of this title is committed, continued or permitted by
such person[/corporation].” A violation of conditions set forth in a
conditional-use permit and development plans are also subject to
the measures set out in section 17.70.010, which allows for the
revocation or modification of permits. (§ 17.74.030.)
Section 17.74.040 provides that the first violation is punishable
by a fine of $50; a $100 fine for a second violation of the same
condition within one year; a $150 fine for a third violation within
one year; and a $300 fine for each additional violation of the same
condition within one year; it is “a separate offense for each and
every day during any portion of which any violation is committed,
continued or permitted by such person and shall be punishable
accordingly.” (§ 17.74.040.)
Roth argues the City had no choice but to order the stair
structure removed. He cites to section 1.10.050A, which provides:
“Payment of a fine shall not excuse or discharge a failure to
correct continuing violations nor shall it bar further enforcement
action by the City.” We agree with the City that this “means that
payment of a fine will not prevent the City from imposing
additional fines for continuing violations.” We also find “further
enforcement action by the City” means the City may invoke any
other option available to it in the Hermosa Beach Municipal
Code.
Roth contends “although [the] City can certainly issue daily
administrative fines, in addition it must order removal of a non-
19
compliant structure that violates the minimum requirements of
the Zoning Code.” There is no section in the Hermosa Beach
Municipal Code that expressly compels the City to exercise its
discretion in any one particular manner, namely, to order the
removal of the stair structure, as opposed to levying fines ranging
from $50 to $300 for each violation of the same condition (per
§ 17.74.040), or subjecting the person/corporation to
administrative citations and penalties or “other methods of
enforcement or abatement as provided by the Code, including but
not limited to criminal and civil actions” (per §§ 1.10.010,
17.74.010) or modification and/or revocation of permit (per
§§ 17.70.010, 17.74.030). “Mandate will not issue to compel
action unless it is shown the duty to do the thing asked for is
plain and unmixed with discretionary power or the exercise of
judgment.” (Unnamed Physician v. Board of Trustees (2001)
93 Cal.App.4th 607, 618; County of San Diego, supra, 164
Cal.App.4th at p. 596.) Moreover, administrative citations “may
be in addition to any criminal, civil or other legal remedy
established by law which may be pursued to address violations of
the Municipal Code.” (§ 1.10.030, italics added.) Roth has not
pleaded sufficient facts to satisfy the first requirement for this
cause of action.
This cause of action also suffers from a second and
irremediable defect, in that it fails to allege exhaustion of
administrative remedies.
Exhaustion of administrative remedies “refers to the
requirement that administrative remedies be pursued as a
jurisdictional prerequisite to seeking judicial relief from an
administrative action.” (California Correctional Peace Officers
Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1148.) In
20
general, a party must exhaust administrative remedies before
resorting to the courts. (Branciforte Heights, LLC v. City of
Santa Cruz (2006) 138 Cal.App.4th 914, 932.) Under this rule,
an administrative remedy is exhausted only upon termination of
all available, nonduplicative administrative review procedures.
(Id. at pp. 932–933.) The exhaustion doctrine is principally
grounded on concerns favoring administrative autonomy (i.e.,
courts should not interfere with an agency determination until
the agency has reached a final decision) and judicial efficiency
(i.e., overworked courts should decline to intervene in an
administrative dispute unless absolutely necessary). (Id. at
p. 933.)
The record demonstrates Roth did not appeal from the
Planning Commission’s October 2015 decision granting the
conditional-use permit, the January 2018 decision granting the
certificate of occupancy, and the November 2017 decision
approving the revised plans.
The FACC’s only allegation addressing this requirement is
the conclusory statement: Roth “has no speedy or adequate
remedy at law” and sought a writ of mandate “to compel the City
of Hermosa Beach to . . . order[] the removal of the stair structure
and wall and enforc[e] its order.” This is nowhere close to
sufficient as no facts are alleged to support the conclusory
statement. If Roth wished to appeal the Planning Commission’s
October 2015 decision granting the conditional-use permit/plan or
its November 2017 decision approving the revised permit/plan or
its January 2018 decision granting the application for certificate
of occupancy, he should have filed a written appeal with the City
Council to review the decisions by the Planning Commission.
21
(§§ 17.58.040, 17.56.070.) The FACC contains no allegations that
Roth pursued these remedies.
Roth argues he “can amend his allegations that City had a
ministerial duty to disapprove the stair structure by further
alleging that since the modifications were not minor, the
Planning Commission would have to hold another public hearing
to approve them.” Roth also argues he “can amend to allege that
Rollins did not conform to procedures required by law. He orally
approved a major plan modification that violated the permit and
Code, with no new approved written plans, and without seeking a
new public hearing at the Planning Commission. Rollins
approved the stairs [with] no formality at all. He is not the
Community Development Director, and the permit gave him no
authority to approve even a minor modification.”
The amendments proposed by Roth would affect the first
requirement for mandamus relief (i.e., whether there was a
ministerial duty or abuse of discretion). No matter what,
however, Roth cannot plead facts showing he exhausted his
administrative remedies. Thus, the court did not abuse its
discretion in denying leave to amend the cause of action for
mandamus.
B. The Trial Court Properly Sustained the Demurrer to the
Cause of Action for Public Nuisance Per Se Without Leave
to Amend.
Roth challenges the trial court’s order sustaining the
demurrer to his cause of action for public nuisance per se; he
does not raise the general public nuisance theory on appeal. We
review the court’s ruling de novo. (Dudek, supra, 34 Cal.App.5th
at p. 163.)
22
1. Applicable Law
Civil Code section 3479 defines a nuisance as “[a]nything
which is injurious to health, including, but not limited to, the
illegal sale of controlled substances, or is indecent or offensive to
the senses, or an obstruction to the free use of property, so as to
interfere with the comfortable enjoyment of life or property.”
(Italics added.) A nuisance may be a public nuisance, a private
nuisance, or both. (City of Claremont v. Kruse (2009)
177 Cal.App.4th 1153, 1163 (Kruse).)
“[A] public nuisance is not dependent upon a disturbance of
rights in land but upon an interference with the rights of the
community at large.” (Venuto v. Owens–Corning Fiberglas Corp.
(1971) 22 Cal.App.3d 116, 124, italics added (Venuto).) A public
nuisance “affects at the same time an entire community or
neighborhood, or any considerable number of persons, although
the extent of the annoyance or damage inflicted upon individuals
may be unequal.” (Civ. Code, § 3480, italics added.) The
remedies against a public nuisance are: “1. Indictment or
information; [¶] 2. A civil action; or [¶] 3. Abatement.” (Civ.
Code, § 3491.) “Of course, not every interference with collective
social interests constitutes a public nuisance. To qualify, and
thus be enjoinable [or abatable], the interference must be both
substantial and unreasonable.” (People ex rel. Gallo v. Acuna
(1997) 14 Cal.4th 1090, 1105, some italics added (Acuna).) It is
substantial if it causes significant harm and unreasonable if its
social utility is outweighed by the gravity of the harm inflicted.
(Ibid.)
23
A nuisance per se arises “ ‘when a legislative body with
appropriate jurisdiction, in the exercise of the police power,
expressly declares a particular object or substance, activity, or
circumstance, to be a nuisance. . . . [T]o rephrase the rule, to be
considered a nuisance per se the object, substance, activity or
circumstance at issue must be expressly declared to be a
nuisance by its very existence by some applicable law.’ ” (Kruse,
supra, 177 Cal.App.4th at p. 1163, italics added.) Where the law
expressly declares something to be a nuisance, then no inquiry
beyond its existence need be made. (Id. at p. 1164.) Nuisances
per se are so regarded because no proof is required, beyond the
actual fact of their existence, to establish the nuisance. (Ibid.)
An action to abate a public nuisance “must be prosecuted by
a governmental entity and may not be initiated by a private
party unless the nuisance is personally injurious to that private
party.” (County of Santa Clara v. Superior Court (2010)
50 Cal.4th 35, 55, italics added (County of Santa Clara).) “A
private person may maintain an action for a public nuisance, if it
is specially injurious to himself, but not otherwise.” (Civ. Code,
§ 3493.) To have standing to pursue a public nuisance
abatement action, the private party must suffer an injury that is
“different in kind, not merely in degree, from that suffered by
other members of the public.” (Kempton v. City of Los Angeles
(2008) 165 Cal.App.4th 1344, 1349 (Kempton).)
2. Analysis
The FACC’s public nuisance per se claim cites to sections
17.02.010–17.02.030; these sections address the purpose of land
use plans, the title of zoning ordinance for citation, and the
interpretation of provisions in promoting the public health,
safety, and general welfare.
24
Having incorporated the allegations in support of the cause
of action for mandamus, the FACC also cites to sections 17.12.020
(setting building height cap and rear yard setback), 17.12.060
(setting permissible lot coverage percentage at no more than
65 percent), and 17.46.130 (setting cap on wall/fence height and
other restrictions). None of the cited statutory language specifies
that any of the alleged violations constitute a public nuisance per
se. (See, e.g., Jones v. Union Pacific Railroad Co. (2000)
79 Cal.App.4th 1053, 1068 [to support a claim of nuisance per se,
plaintiffs must point to a statutory provision that declares the
alleged conduct a nuisance].)
In his opening brief, Roth cites to section 17.74.020 in
support of his public nuisance per se claim, which provides: “Each
person . . . found guilty of a violation shall be deemed guilty of a
separate offense for every day during any portion of which any
violation of any provision of this title is committed, continued or
permitted by such person . . . and any use, occupation or building
or structure maintained contrary to the provisions hereof shall
constitute a public nuisance.” (§ 17.74.020, italics added.) Roth
contends the stair structure violates the conditional-use permit
and is thus a public nuisance per se.
The problem is that the FACC itself does not cite to section
17.74.020 to support Roth’s claim for public nuisance per se.
Roth in fact conceded in his August 31, 2020 opposition to the
Trans’ demurrer that his FACC “did not cite the [relevant]
ordinances.” To support a claim of nuisance per se, Roth must
point to a statutory provision that expressly declares the alleged
issue to be a nuisance. (Beck v. Development Co. v. Southern
Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1207.)
Roth has failed to do so in the FACC.
25
Second, Roth does not allege facts to support his right to
abate the public nuisance in his capacity as a private party.
Section 1.04.050C, entitled “Violations Deemed To Be a
Public Nuisance,” expressly provides: “In addition to the
penalties . . . provided, any condition caused or permitted to exist
in violation of any of the provisions of the Code shall be deemed a
public nuisance and may be summarily abated as such by the
City, and every day such condition continues shall be regarded as
a new and separate offense.” (Italics added.)
Generally, an action to abate a public nuisance “must be
prosecuted by a governmental entity and may not be initiated by
a private party unless the nuisance is personally injurious to that
private party.” (County of Santa Clara, supra, 50 Cal.4th at
p. 55, citing Civ. Code, § 3493.) To allege standing to pursue a
public nuisance abatement action, the private party must suffer
an injury that is “different in kind, not merely in degree, from
that suffered by other members of the public.” (Kempton, supra,
165 Cal.App.4th at p. 1349.) “A private person may maintain an
action for a public nuisance, if it is specially injurious to himself,
but not otherwise.” (Civ. Code, § 3493; see Kempton, at p. 1349.)
Put another way, to establish standing, private plaintiffs must
allege that both they and the public were injured, albeit in
different ways or in different degree, by the alleged public
nuisance.
In Kempton for instance, a fence erected upon City property
blocked the sidewalk area in a public right-of-way and blocked
the property owners’ sightlines upon entering and exiting their
garage along the street, “causing ‘fear of being in a vehicle
collision, fear of hitting a pedestrian.” (Kempton, supra,
165 Cal.App.4th at pp. 1349–1350.) The reviewing court in
26
Kempton found the fence was a public nuisance as it affects at the
same time an entire community or neighborhood (the fence blocks
the sidewalk area in a public right-of-way) and also affects the
property owners (the fence blocks their sightline when
entering/exiting their garage). (Id. at pp. 1348–1350.)
“Interference with the ingress and egress to and from a public
street constitutes ‘both a private and public nuisance’ and may
constitute a special injury actionable by an individual.” (Id. at
p. 1349, italics added.)
In the FACC, however, Roth has not pleaded facts showing
the stair structure caused “an interference with the rights of the
community at large” (Venuto, supra, 22 Cal.App.3d at p. 124) or
affected “at the same time an entire community or neighborhood,
or any considerable number of persons” (Civ. Code, § 3480). (See
Acuna, supra, 14 Cal.4th at p. 1103.) Roth merely pleaded that
he suffered “special injury” because he lived next door to the stair
structure that did not have the required rear yard setback from
his neighbor’s stair structure. Without facts alleging how the
stair structure caused any interference with the rights of the
community or neighborhood at large and how that public injury
compared with the harm suffered by Roth himself, Roth has
failed to sufficiently plead he suffered “special injury” from the
alleged nuisance.
Finally, Roth shoulders the burden to show a reasonable
possibility the defect in the FACC can be cured by amendment; if
it can, the trial court abused its discretion in sustaining the
demurrer without leave to amend. (Dudek, supra,
34 Cal.App.5th at pp. 163–164.)
27
Roth has not proposed an amendment that would cure the
defects and has not provided any argument or citation to the law
in this regard. A party is required in his or her brief to “[s]tate
each point under a separate heading or subheading summarizing
the point, and support each point by argument and, if possible, by
citation of authority.” (Cal. Rules of Court6, rule 8.204(a)(1)(B),
italics added; see Pizarro v. Reynoso (2017) 10 Cal.App.5th
172, 179 (Pizarro).) An appellant who does not provide adequate
legal authority and analysis to support a contention forfeits that
contention. (Ewald v. Nationstar Mortgage, LLC (2017)
13 Cal.App.5th 947, 948; Nielsen v. Gibson (2009)
178 Cal.App.4th 318, 324.) This contention is forfeited.
C. The Court Properly Denied Roth’s Ex Parte Request to
Continue the Hearing on the Demurrers.
Roth contends the trial court erred in failing to continue
the demurrers to the date of his sanctions motion because “that
motion showed [the] City’s demurrer presented false arguments
with no evidentiary support.” He argues the court “could have
issued the [nonmonetary] sanction of not allowing [the] City to
press a theory on demurrer which has no evidentiary support.”
He further argues he “had that proof but was denied the ability to
allege it or to amend to allege it,” resulting in prejudicial error.
6 All further undesignated rule references are to the
California Rules of Court.
28
1. Standard of Review
Trial courts generally have broad discretion in deciding
whether to grant a request for a continuance. (Freeman v.
Sullivant (2011) 192 Cal.App.4th 523, 527.) An abuse of
discretion results in reversal only when the denial of a
continuance results in the denial of a fair hearing, or otherwise
prejudices a party. (Ibid.) A reviewing court may not disturb the
exercise of discretion by a trial court in the absence of a clear
abuse thereof appearing in the record. (Forthmann v. Boyer
(2002) 97 Cal.App.4th 977, 984.) The burden rests on the
complaining party to demonstrate from the record that such an
abuse has occurred. (Id. at p. 985.)
2. Applicable Law
The right to seek ex parte relief is subject to strict
procedural and subject matter limitations. Rule 3.1202,
subdivision (c) provides: “An applicant must make an affirmative
factual showing in a declaration containing competent testimony
based on personal knowledge of irreparable harm, immediate
danger, or any other statutory basis for granting relief ex parte.”
(Rule 3.1202(c).)
3. Analysis
We preliminarily note Roth does not support his
contentions as to this issue on appeal with citation to legal
authority or case law; his opening brief does not provide any
information as to the applicable standard of review. A party is
required in his or her brief to “[s]tate each point under a separate
heading or subheading summarizing the point, and support each
point by argument and, if possible, by citation of authority.” (Rule
8.204(a)(1)(B), italics added; see Pizarro, supra, 10 Cal.App.5th at
29
p. 179.) A reviewing court has no obligation to “develop
appellants’ argument for them.” (In re Marriage of Falcone &
Fyke (2008) 164 Cal.App.4th 814, 830; see Pizarro at p. 179 [an
appellant forfeits his argument if “he did not sufficiently apprise
the court of what argument he was trying to make”]; see
Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 948 [“We are
not required to make an independent, unassisted study of the
record in search of error [in] a trial court’s action.”].) Roth’s reply
brief is no better, as it fails to address or mention the issue. He
has forfeited this issue.
Alternatively, we find the sanctions motion was immaterial
to the court’s consideration of the demurrers. A demurrer tests
the legal sufficiency of the challenged pleading—here, Roth’s
FACC—and Roth’s arguments about the City’s demurrer not
“be[ing] supported by the evidence” are misplaced. An analysis of
the City’s demurrer to the FACC does not rely on a review of the
evidence, but rather, a review of the operative complaint or cross-
complaint to determine whether it states facts sufficient to
constitute a cause of action. (Blank, supra, 39 Cal.3d at p. 318.)
We find no error.
30
DISPOSITION
The judgment and order are affirmed. Costs are awarded
to respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
31