City of L.A. v. Lance Jay Robbins Paloma Partnership CA2/3

Filed 8/15/23 City of L.A. v. Lance Jay Robbins Paloma Partnership CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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8.1115(b). This opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
CITY OF LOS ANGELES, B324441
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV11588)
v.
LANCE JAY ROBBINS PALOMA
PARTNERSHIP et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of
Los Angeles County, Elaine Lu, Judge. Affirmed.
Hydee Feldstein Soto, City Attorney, Terry Kaufmann
Macias, Senior Assistant City Attorney, Amy Brothers and
Jennifer Tobkin, Deputy City Attorneys, for Plaintiff and
Appellant.
Law Offices of Thomas A. Nitti and Thomas A. Nitti, for
Defendants and Respondents.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
The City of Los Angeles (the City or plaintiff) appeals from
an order of the trial court dissolving a preliminary injunction
which had enjoined Lance Jay Robbins Paloma Partnership
(LJRPP), 7th Street Associates, and Lance Jay Robbins
(collectively defendants) from using their building known as the
Ellison Apartments (the Ellison) as a hotel or for short-term
occupancy. The trial court found that the decision in People v.
Venice Suites, LLC (2021) 71 Cal.App.5th 715 (Venice Suites),
which held that the Los Angeles Municipal Code does not
regulate the length of occupancy in an apartment house and that
short-term occupancy was accordingly a permissible use, created
a material change in the applicable law.
On appeal the City argues that defendants are precluded
from relitigating the issue of whether the Ellison can be used for
short-term rentals, because that issue was already decided in a
prior proceeding. It also argues that Venice Suites is
inapplicable. We conclude that the trial court did not err when it
found that issue preclusion did not apply or when it determined
that Venice Suites created a material change in the law, and
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Prior Writ Proceeding
In January 2018, defendant LJRPP initiated an
administrative proceeding with the Los Angeles Department of
Building and Safety (LADBS) seeking a “modified” certificate of
2
occupancy or, alternatively, an interpretation of the existing
1
certificate of occupancy that would permit the Ellison to be used
as a hotel. LADBS denied the request, and LJRPP appealed to
the City’s Zoning Administrator (ZA). The ZA denied the appeal,
and LJRPP appealed that decision to the West Los Angeles Area
Planning Commission (APC). The APC sustained the ZA’s
denial.
Following the APC’s decision, LJRPP filed a petition for
writ of administrative mandate directing the City to set aside the
APC’s decision denying LJRPP’s appeal of the ZA and LADBS
(the Writ Proceeding). The City answered, and after a hearing on
October 1, 2020, the trial court denied the petition for writ of
mandate. In its written order, the trial court noted that the
APC’s denial of LJRPP’s administrative appeal “was based upon
the following findings: (1) building records show that ‘the only
recorded use of the subject building since its construction is that
of an Apartment House’; (2) the Ellison was constructed as an
apartment house per every definition of the term due to the
presence of kitchens; (3) there is not recorded evidence of the use
of the Ellison as a Hotel; (4) Petitioner does not have a vested
right to operate the Ellison with short-term rentals/transient
occupancy; (5) the Ellison does not have any nonconforming
rights to operate with short-term rentals/transient occupancy;
and (6) the Ellison is prohibited from operating as a hotel or for
other short term rental (less than 30 days) occupancy in its
current RD1.5 zone.” The court found that substantial evidence
1
The Ellison is a 58-unit apartment building located in the
Venice neighborhood of the City of Los Angeles that was built in
the early 20th century.
3
supported each of the APC’s findings and that the APC had not
abused its discretion.
Relevant to this appeal, the trial court found that the APC’s
finding that short-term rentals were prohibited in the RD1.5 zone
was neither error nor an abuse of discretion. The APC found that
“the Ellison was re-zoned to RD1.5 in 1973, and that the RD1.5
zone does not allow hotels, motels, or apartment hotels by right.”
The APC had also determined, based on Planning Department
and LADBS guidance, that STRs are not allowed in R-zoned
properties. The trial court deferred to the “ ‘City’s interpretation
of its own City Code,’ ” which provided that the RD1.5 zone
allowed “ ‘apartment house[s]’ ” but not “ ‘hotel[s]’ ” and that
short-term rentals were not permitted in the RD1.5 zone. The
trial court also observed that while LJRPP had cited to a trial
court ruling in an unrelated case, Venice Suites, which addressed
STR “use at an ‘apartment house’ in the City of Los Angeles,”
LJRPP had neither asked for a stay while that case was pending
appeal nor briefed and developed the arguments made in that
case. Accordingly, the trial court rejected LJRPP’s argument that
the APC had abused its discretion when it found that the RD1.5
zone did not permit hotels or short-term rentals.
LJRPP filed a notice of appeal, but later dismissed the
appeal, and the trial court’s order became a final judgment.
II. The Instant Action
While the Writ Proceeding was pending, plaintiff brought
the instant action against asserting violations of the Los Angeles
Municipal Code (LAMC) and claims of public nuisance.
A. The Operative Complaint
The operative First Amended Complaint (FAC), filed June
24, 2020, asserted causes of action for Unauthorized Change of
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Use in violation of LAMC sections 11.00(l) and 12.21.A.1(a),
Unauthorized Zone and Land Use Designation in violation of
LAMC sections 11.00(l) and 12.21.A1(a), and Public Nuisance in
violation of Civil Code sections 3479 and 3480. The FAC alleged
that defendants own and operate the Ellison, located in the
Venice area of the City of Los Angeles in a low-density residential
zone referred to as RD1.5. The FAC further alleged that
defendants were using the Ellison as a hotel or renting the
apartments as STRs, and that those uses were not authorized in
the RD1.5 zone.
B. The Preliminary Injunction
Plaintiff moved for a preliminary injunction, which the trial
court granted after finding that plaintiff had demonstrated a
probability of success on the merits for its claims for public
nuisance. The court found that plaintiff had submitted evidence
that the Ellison was “zoned only for RD1.5 uses and that its use
as a short-term stay hotel falls outside its authorized zoning
uses.” It also found that “Plaintiff submitted evidence that the
Ellison Apartments are located in an area designated for low-
medium land use, and that hotels are not authorized to operate
in areas designated for low to medium land use.” The
preliminary injunction enjoined defendants from using the
Ellison for transient occupancy or for a hotel during the pendency
of the case.
C. The Trial Court Dissolves the
Preliminary Injunction
In October 2022 defendants moved to dissolve the
preliminary injunction based on a change in the applicable law.
Defendants argued that the recent decision in Venice Suites,
which held that the LAMC did not prohibit short-term occupancy
5
of apartment houses in the R3 Multiple Dwelling zone, was
applicable in this case and warranted dissolution of the
preliminary injunction.
In its opposition, plaintiff argued that defendants were
collaterally estopped from relitigating whether short-term rentals
were permitted in apartment houses in the City’s RD1.5 Zone
based on the trial court’s earlier decision in the Writ Proceeding.
Plaintiff also asserted that Venice Suites was inapplicable
because that case involved interpretation of the City’s R3 zone,
and involved different properties, and different owners.
Additionally, plaintiff maintained that Venice Suites was
inapplicable because in developing the record in that case the
People had not presented the court with evidence of the City’s
interpretation of its zoning code, while such evidence had been
introduced in the Writ Proceeding. Plaintiff also made various
arguments that Venice Suites was incorrectly decided.
The trial court found that Venice Suites represented a
material change in the law and granted defendants’ request to
dissolve the preliminary injunction. The court noted that Venice
Suites had analyzed the issue of whether the LAMC’s definition
of apartment house contained a length of occupancy requirement
and found that it did not. The court found that Venice Suites was
“plainly applicable to the instant action,” observing that both
cases involved claimed violations of LAMC section 12.21(A)(1)
“arising out of improper uses incompatible with the zone and out
of failure to secure proper building permits and Certificate of
Occupancy for the alleged use.” Additionally, both cases involved
the claim that the property owners were improperly operating
hotels or short-term rentals. The court determined that “the only
notable difference” between the two cases was that Venice Suites
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involved the R3 zone, while the instant case involved the RD1.5
zone. The court stated that the difference was “inapposite
because both RD3 zones and RD1.5 zones permit Apartment
Housing, which as the Court of Appeal explained in Venice Suites,
does not have a length of occupancy requirement in the Zoning
Code.”
The court addressed and rejected plaintiff’s collateral
estoppel arguments. It found that although the Writ Proceeding
met two of the threshold requirements for collateral estoppel,
namely a common party and a final judgment, the parties had not
sufficiently developed the argument that apartment houses
might be interpreted to permit short-term rentals such that the
Writ Proceeding involved identical issues that had been actually
litigated. The trial court also found that even if the issue had
been adequately raised in the Writ Proceeding, Venice Suites
represented a material change in the law and that collateral
estoppel was therefore inapplicable.
Plaintiff timely appealed.
DISCUSSION
I. Standards of Review
We generally review the trial court’s order granting or
denying a motion to dissolve an injunction for abuse of discretion.
(Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505.)
“However, pure questions of law, such as the interpretation of a
statute, are reviewed de novo.” (People ex rel. Feuer v.
Progressive Horizon, Inc. (2016) 248 Cal.App.4th 533, 540.) We
also review de novo a trial court’s decision to apply collateral
estoppel. (See, e.g., Samara v. Matar (2017) 8 Cal.App.5th 796,
803.)
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II. Issue Preclusion does not apply
Plaintiff argues that the trial court erred when it dissolved
the preliminary injunction because defendants were collaterally
estopped from relitigating the issue of whether the Ellison can be
used as a hotel or as short-term rentals based on the final
2
judgment in the Writ Proceeding.
Issue preclusion, also referred to as collateral estoppel,
prevents a party from relitigating an issue that was finally
determined in a prior judicial or quasi-judicial action. (DKN
Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) The
doctrine applies “(1) after final adjudication (2) of an identical
issue (3) actually litigated and necessarily decided in the first
suit and (4) asserted against one who was a party in the first suit
or one in privity with that party.” (Id. at p. 825.) “Even if these
threshold requirements are satisfied, courts may consider the
public policies underlying issue preclusion in determining
whether the doctrine should be applied.” (Meridian Financial
Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 686.)
There is no dispute in this case that there was a common
party and final judgment in the Writ Proceeding. Thus, the
question raised here is whether the prior proceeding involved an
identical issue that was actually litigated and necessarily
decided. “For purposes of collateral estoppel, an issue was
actually litigated in a prior proceeding if it was properly raised,
submitted for determination, and determined in that proceeding.”
(Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511.) “ ‘The
2
We grant the parties’ outstanding requests for judicial
notice; however, we disregard all documents not relevant to our
disposition of the appeal. (See Kilker v. Stillman (2015) 233
Cal.App.4th 320, 238.)
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“identical issue” requirement’ ” is often described as a
determination of whether “ ‘ “identical factual allegations” are at
stake in the two proceedings.’ ” (Id. at pp. 511–512.) However,
issue preclusion can also apply when a prior proceeding has
determined an issue of law. (Arcadia Unified School Dist. v.
State Dept. of Education (1992) 2 Cal.4th 251, 257.) “An issue
decided in a prior proceeding establishes collateral estoppel even
if some factual matters or legal theories that could have been
presented with respect to that issue were not presented.
[Citations.] A prior decision does not establish collateral
estoppel, however, on issues that could have been raised and
decided in the prior proceeding but were not. [Citations.]”
(Bridgeford v. Pacific Health Corp. (2012) 202 Cal.App.4th 1034,
1042–1043.)
Needless to say, distinguishing issues from factual matters
or legal theories “is not always easy.” (Wimsatt v. Beverly Hills
Weight etc. Internat., Inc. (1995) 32 Cal.App.4th 1511, 1517.) The
trial court identified the relevant “issue” as whether the Writ
Proceeding had litigated the definition of apartment house and
whether the definition permitted short-term rentals. That issue
was not briefed or argued, and the trial court in the Writ
Proceeding did not address it.
Plaintiff argues, however, that the issue actually litigated
in the prior proceeding was whether the Ellison may be used for
short-term rentals, which the court in the Writ Proceeding did
address and resolve when it determined that “the Ellison is
prohibited from operating as a hotel or for other short term rental
(less than 30 days) occupancy in its current RD1.5 zone.”
However, the fact that the same “ultimate issues or dispositions”
are at stake does not necessarily mean that the “identical issue”
9
has been presented in both matters. (Lucido v. Superior Court
(1990) 51 Cal.3d 335, 342.) We conclude that the applicable
“issue” is whether the LAMC regulates the length of occupancy in
an apartment house. The Writ Proceeding court did not address
that issue, and expressly stated that LJRPP had not “provide[d]
any meaningful discussion of the legal issues and Zoning Code
definitions analyzed by the trial court in Venice Suites LLC.”
Perhaps a closer question is whether LJRPP should have
raised that issue in the prior proceeding. “For purposes of issue
preclusion . . . an ‘issue’ includes any legal theory or factual
matter which could have been asserted in support of or in
opposition to the issue which was litigated.” (Border Business
Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538,
1565–1566.) As noted, LJRPP referenced the trial court decision
in Venice Suites in the prior proceeding but did not develop the
arguments the parties had made in that case. That suggests that
LJRPP both could have and possibly should have done more to
raise and litigate the issue in the Writ Proceeding. On the other
hand, as the Writ Proceeding court stated, Petitioner’s original
application to the City was not about short-term rentals or an
interpretation of apartment houses. LJRPP’s “application to the
DBS was specifically to modify the 1967 certificate of occupancy
or interpret it to permit ‘the Ellison’s historic use as a hotel.’ ”
“Thus one pertinent question for the APC was whether the 1967
C of O properly classified the Ellison as an apartment house,
instead of a hotel.”
The issues raised and decided in the administrative appeal
ultimately included determinations that the Ellison was an
“apartment house” not a “hotel,” and that the Ellison was not
permitted to host short-term rentals because it was in the RD1.5
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zone. The determination about whether short-term rentals were
a permissible use appears to have been made because throughout
the administrative proceedings the LJRPP and the City conflated
the concept of “hotel” and “short-term rental.” LJRPP, for its
part, would have been satisfied with a result that permitted it to
operate as either a hotel or for short-term occupancy, while the
City did not want the Ellison used for either purpose. However,
in light of the issue presented in the initial petition regarding the
interpretation of the Ellison’s certificate of occupancy, we cannot
conclude that the issue raised in Venice Suites should have been
raised in the prior proceeding, or even if it had been whether it
would have been “necessarily decided.”
III. Venice Suites applies in this case
In any event, even assuming the threshold requirements
for issue preclusion are met, “[issue preclusion] will not be
applied where there has been a material change in the law.”
(Sacramento County Employees’ Retirement System v. Superior
Court (2011) 195 Cal.App.4th 440, 452; see People v. Strong
(2022) 13 Cal.5th 698, 716 [“one well-settled equitable exception
to the general rule holds that preclusion does not apply when
there has been a significant change in the law since the factual
findings were rendered that warrants reexamination of the
issue”].)
We agree with the trial court that “the holding of Venice
Suites is plainly applicable to the instant action.” Like this case,
Venice Suites involved an action brought against a building
owner of an apartment house for violation of the LAMC and for
public nuisance. (Venice Suites, supra, 71 Cal.App.5th at p. 720.)
11
3
There, the People of the State of California (the People) alleged
that Venice Suites illegally operated a hotel or transient
occupancy residential structure (TORS) in an apartment house
for long term tenants. (Ibid.) The People further alleged that the
apartment house was located in the R3 Multiple Dwelling
residential zone that did not permit short-term occupancy. (Ibid.)
The trial court granted summary adjudication finding that “the
[LAMC] did not prohibit short-term occupancy of apartment
houses in an R3 zone.” (Ibid.)
On appeal, the court “agree[d] with the trial court that the
[LAMC] does not regulate the length of occupancy in Apartment
Houses in R3 zones.” (Venice Suites, supra, 71 Cal.App.5th at
p. 726.) The court looked first to the definition of “apartment
house,” which the LAMC defines as “[a] residential building
designed or used for three or more dwelling units or a
combination of three or more dwelling units and not more than
five guest rooms or suites of rooms.” (Ibid.) The court observed
that the definition had no length of occupancy requirement and
declined to read one into the definition. (Id. at p. 730.)
In doing so, the court considered the argument made by the
People that “apartment houses” were a subset of TORS, which
are defined as “ ‘[a] residential building designed or used for one
or more dwelling units or a combination of three or more
dwelling units and not more than five guest rooms or suites of
rooms wherein occupancy, by any person . . . is for a period of 30
3
Although Venice Suites was brought by the People, the
People were represented by the City Attorney’s Office, which filed
the action and appears on the briefs. (Venice Suites, supra,71
Cal.App.5th at p. 719.) The City Attorney’s Office also represents
the City of Los Angeles in this case.
12
consecutive calendar days or less. . . .” (Venice Suites, supra, 71
Cal.App.5th at p. 729.) The People argued that “a long-term
occupancy requirement for an Apartment House may be inferred
from the definition limiting TORS to occupancies of 30 days or
less.” (Id. at p. 733.) The court rejected that argument noting
that there was “nothing in the record to show the City Council
intended to add length of occupancy to the long-established
definition of an apartment house when it passed the TORS-
related ordinance.” (Ibid.) The court also rejected the People’s
argument that short-term occupancy in apartment houses was
not allowed under the City’s permissive zoning code, which only
allowed expressly authorized uses. (Ibid.) As the court
explained, under the People’s theory “no length of occupancy
requirement [was] expressed in the definitions for apartment
house, apartment hotel, hotel, or residential building.” (Ibid.)
The court reasoned that if the permissive zoning scheme only
allowed expressly authorized uses, no occupancy would be
permitted in any of those buildings, because none were defined to
include a length of occupancy. (Ibid.)
Plaintiff argues that Venice Suites is both distinguishable
and inapplicable in this case. The primary distinction plaintiff
draws between the building in Venice Suites and the Ellison is
that Venice Suites is zoned for R3 use, while the Ellison is zoned
RD1.5. The RD1.5 zone is more restrictive than the R3 zone, but
both zones are residential and allow apartment houses. The
definition of apartment house, “[a] residential building designed
or used for one or more dwelling units or a combination of three
or more dwelling units and not more than five guest rooms or
suites of rooms” is the same in the R3 and RD1.5 zone. Although
plaintiff argues that the cases are distinguishable because of the
13
different zoning, it does not explain why Venice Suites’ analysis of
apartment houses in the R3 zone would not apply to the same
term in the RD1.5 zone.
Instead, plaintiff contends that Venice Suites is
inapplicable because the People did not make the same
arguments or present the same evidence in Venice Suites as the
City did in the Writ Proceeding. Plaintiff reasons that the
holding in Venice Suites is accordingly inapposite because a case
is not authority for propositions that it did not consider.
Of course, “[i]n every case, it is necessary to read the
language of an opinion in light of its facts and the issues raised,
in order to determine which statements of law were necessary to
the decision, and therefore binding precedent, and which were
general observations unnecessary to the decision.” (Fireman’s
Fund Ins. Co. v. Maryland Casualty Co. (1998) 65 Cal.App.4th
1279, 1301 (Fireman’s Fund Ins. Co.); see Ginns v. Savage (1964)
61 Cal.2d 520, 524, fn. 2 [“Language used in any opinion is . . . to
be understood in the light of the facts and the issue then before
the court, and an opinion is not authority for a proposition not
therein considered”]; see People v. Rusconi (2015) 236
Cal.App.4th 273, 280.) However, the fact that different or better
arguments might have been presented in the Venice Suites case
does not make it inapplicable or non-binding in other cases.
Venice Suites is precedent for the statements of law that were
“necessary to the decision” of that case regardless of what
plaintiff thinks of the arguments presented there. (Fireman’s
Fund Ins. Co., at p. 1301.)
Nor are we persuaded, as plaintiff contends, that “Venice
Suites’ own language contemplated an alternative conclusion if
the evidence of the City’s intent and interpretation of the TORS
14
enactment had been offered.” Plaintiff points to two statements
in Venice Suites in support of this argument. First, the court
wrote that: “For purposes of this opinion, we conclude we need
not rely on the City’s interpretations of the Los Angeles
Municipal Code.” (Venice Suites, supra, 71 Cal.App.5th at p. 723,
fn. 3.) Second, it stated that “There is nothing in the record to
show the City Council intended to add a length of occupancy to
the long-established definition of an apartment house when it
passed the TORS-related ordinance.” (Id. at p. 733.) Taken in
context, we do not read these statements in Venice Suites as an
invitation for an alternative analysis if presented with different
evidence. The Venice Suites court was plainly aware that “a city’s
interpretation of an ambiguous portion of its own code ‘is entitled
to deference.’ ” (Id. at p. 723, fn. 3.) Its decision to proceed
without the city’s interpretation indicates that it did not consider
the appliable code provisions ambiguous.
We also reject plaintiff’s argument that Venice Suites put
misplaced reliance on Edwards v. City of Los Angeles (1941) 48
Cal.App.2d 62, 69, and Euclid v. Ambler Realty Co. (1926) 272
U.S. 365, in determining the definition of apartment house.
Venice Suites made only passing references to Edwards and
Euclid in response to arguments made by the People urging the
court to look to “dictionary definitions and federal caselaw” to
determine whether “apartment house is restricted to long-term
occupancy.” (Venice Suites, supra, 71 Cal.App.5th at p. 731.) The
Venice Suites opinion made clear that its conclusion that
apartment house does not have a minimum length of occupancy
was based on the LAMC definition of apartment house and the
rule that the “court’s function ‘is simply to ascertain and declare
what is in terms or in substance contained therein, not to insert
15
what has been omitted, or to omit what has been
4
inserted. . . . [Citations.]” (Ibid.)
4
In light of our conclusion, we need not address defendants’
arguments that this appeal is moot or that collateral estoppel
bars plaintiff from arguing that short-term rentals are not
permitted in an apartment house except to note that the general
rule that “issues raised for the first time on appeal which were
not litigated in the trial court are [forfeited].” (Gray1 CPB, LLC
v. SCC Acquisitions, Inc. (2015) 233 Cal.App.4th 882, 897.)
16
DISPOSITION
The trial court’s order dissolving the preliminary injunction
is affirmed. Respondents shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
HEIDEL, J.*
We concur:
EDMON, P. J.
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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