This case was last updated from Los Angeles County Superior Courts on 05/07/2019 at 13:37:55 (UTC).

BEHZAD FORAT ET AL VS CITY OF LOS ANGELES ET AL

Case Summary

On 06/28/2016 BEHZAD FORAT filed an Other - Writ Of Mandamus lawsuit against CITY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARY H. STROBEL and JAMES C. CHALFANT. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3322

  • Filing Date:

    06/28/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Writ Of Mandamus

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MARY H. STROBEL

JAMES C. CHALFANT

 

Party Details

Plaintiffs and Petitioners

STUDIO CITY CAR WASH INC

FORAT BEHZAD

Defendants and Respondents

CITY COUNCIL OF THE CITY OF LOS ANGELES

LOS ANGELES CITY OF

DOES 1-30`

Attorney/Law Firm Details

Plaintiff Attorney

WEINBERG LISA ANNE

Petitioner Attorney

GAINES & STACEY LLP

Defendant Attorney

HECTOR MORGAN LINSCOTT

 

Court Documents

NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF PORTIONS OF CLOSED SESSION TRANSCRIT TO THE COURT FOR IN CAMERA REVIEW AND FOR SANCTIONS; ETC.

3/23/2018: NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF PORTIONS OF CLOSED SESSION TRANSCRIT TO THE COURT FOR IN CAMERA REVIEW AND FOR SANCTIONS; ETC.

Minute Order

4/17/2018: Minute Order

NOTICE OF UNAVAILABILITY OF COUNSEL

6/1/2018: NOTICE OF UNAVAILABILITY OF COUNSEL

Minute Order

9/18/2018: Minute Order

Brief

2/6/2019: Brief

Opposition

3/18/2019: Opposition

Request for Judicial Notice

3/18/2019: Request for Judicial Notice

Notice of Lodging

4/11/2019: Notice of Lodging

SUMMONS

6/28/2016: SUMMONS

Minute Order

11/15/2016: Minute Order

STIPULATION TO CONTINUE HEARING ON PETITIONERS AND PLAINTIFFS' FURTHER MOTION TO COMPEL AND FOR SANCTIONS, AND TRIAL SETTING CONFERENCE; [PROPOSED] ORDER

2/24/2017: STIPULATION TO CONTINUE HEARING ON PETITIONERS AND PLAINTIFFS' FURTHER MOTION TO COMPEL AND FOR SANCTIONS, AND TRIAL SETTING CONFERENCE; [PROPOSED] ORDER

OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES; DECLARATION OF GABRIEL S. DERMER

4/26/2017: OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES; DECLARATION OF GABRIEL S. DERMER

Minute Order

5/9/2017: Minute Order

RESPONDENT CITY OF LOS ANGELES' OBJECTIONS TO EVIDENCE

8/29/2017: RESPONDENT CITY OF LOS ANGELES' OBJECTIONS TO EVIDENCE

PETITIONERS RESPONSES TO CITY OF LOS ANGELES' OBJECTIONS TO EVIDENCE

9/5/2017: PETITIONERS RESPONSES TO CITY OF LOS ANGELES' OBJECTIONS TO EVIDENCE

TENTATIVE DECISION ON MOTION FOR IN CAMERA REVIEW: GRANTED

9/12/2017: TENTATIVE DECISION ON MOTION FOR IN CAMERA REVIEW: GRANTED

PRIVILEGE LOG FOR CLOSED SESSION MEETING OF APRIL 1, 2016; DECLARATION OF DEPUTY CITY ATTORNEY STREFAN FAUBLE

11/3/2017: PRIVILEGE LOG FOR CLOSED SESSION MEETING OF APRIL 1, 2016; DECLARATION OF DEPUTY CITY ATTORNEY STREFAN FAUBLE

NOTICE OF CONTINUANCE OF HEARING

11/16/2017: NOTICE OF CONTINUANCE OF HEARING

55 More Documents Available

 

Docket Entries

  • 04/23/2019
  • at 1:30 PM in Department 85, James C. Chalfant, Presiding; Hearing on Petition for Writ of Mandate - Not Held - Continued - Court's Motion

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  • 04/12/2019
  • at 1:30 PM in Department 85, James C. Chalfant, Presiding; Court Order

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  • 04/12/2019
  • Minute Order ( (Court Order)); Filed by Clerk

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  • 04/12/2019
  • Certificate of Mailing for (Minute Order (Court Order) of 04/12/2019); Filed by Clerk

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  • 04/11/2019
  • Request for Judicial Notice; Filed by Behzad Forat (Petitioner); Studio City Car Wash, Inc (Plaintiff)

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  • 04/11/2019
  • Notice of Lodging ( of Judge's Trial Notebook); Filed by Behzad Forat (Petitioner); Studio City Car Wash, Inc (Plaintiff)

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  • 04/11/2019
  • Reply (Brief re Violation of Brown Act); Filed by Behzad Forat (Petitioner); Studio City Car Wash, Inc (Plaintiff)

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  • 03/18/2019
  • Request for Judicial Notice; Filed by Los Angeles, City of (Defendant); City Council of the City of Los Angeles (Defendant)

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  • 03/18/2019
  • Opposition (Respondents' Opposition to Petitioners' Opening Brief Re Violation of Brown Act); Filed by Los Angeles, City of (Defendant); City Council of the City of Los Angeles (Defendant)

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  • 03/18/2019
  • Objection (Respondents City of Los Angeles and Los Angeles City Council's Objections to Evidence); Filed by Los Angeles, City of (Defendant); City Council of the City of Los Angeles (Defendant)

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129 More Docket Entries
  • 07/11/2016
  • NOTICE OF TRIAL SETTING CONFERENCE

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  • 07/11/2016
  • Notice; Filed by Behzad Forat (Petitioner); Studio City Car Wash, Inc (Plaintiff)

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  • 07/11/2016
  • Challenge To Judicial Officer - Peremptory (170.6); Filed by Behzad Forat (Petitioner); Studio City Car Wash, Inc (Plaintiff)

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  • 06/30/2016
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 06/30/2016
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

    Read MoreRead Less
  • 06/30/2016
  • NOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

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  • 06/30/2016
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 06/28/2016
  • Petition; Filed by null

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  • 06/28/2016
  • VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INVERSE CONDEMNATION, PROMISSORY ESTOPPEL, DECLARATORY RELIEF, AND VIOLATION OF BROWN ACT OPEN MEETING LAW

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  • 06/28/2016
  • SUMMONS

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Tentative Rulings

Case Number: BS163322    Hearing Date: February 09, 2021    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

behzad forat;

Plaintiff,

vs.

CITY OF LOS ANGELES, et al.;

Defendants.

Case No.:

BS163322

Hearing Date:

February 8, 2021

[TENTATIVE] RULING RE:

Defendants CITY OF LOS ANGELES AND LOS ANGELES CITY COUNCIL’s motion for summary judgment, or if summary judgment is not granted for summary adjudication

Defendants City of Los Angeles and Los Angeles City Council’s Motion for Summary Judgment is GRANTED.

Factual Background

This is a land use/takings and Brown Act action. The Verified Petition for Writ of Mandate and Complaint alleges as follows. Petitioners Behzad Forat and Studio City Car Wash (collectively, “Forat”) seek a writ of mandate to set aside and vacate a decision of the City of Los Angeles (the “City”) and the Los Angeles City Council (“City Council”) to rescind an earlier action that would have commenced processing a General Plan Amendment and Zone Change for property owned by Forat. (Compl. at p. 1.) Forat owns two parcels of land located on E. Cahuenga Blvd. (the “Property”), totaling 19 acres on the east side of the 101 freeway in the Cahuenga Pass. (Compl. ¶ 5.) In 2014, a City Councilmember asked to purchase part of the Property for the City to use as open space parkland with a small parking lot and hiking trail. (Compl. ¶ 6.) Following negotiations, Forat agreed to donate ten acres to the City (the “Donation Property”) in exchange for the City allowing Forat to build an apartment building on the remaining acreage of the Property (the “Development Property”). (Compl. ¶ 6.)

On March 18, 2015, the City Council adopted a Motion that authorized the City to acquire the Donation Property after the Development Property was rezoned, and instructed the City Planning Department to “initiate consideration of a General Plan Amendment and Zone Change, and other City Planning approvals if needed, including the preparation and adoption of any required ordinances, to rezone [the Development Property] as R3 and rezone [the Donation Property] as open space should the City ultimately acquire that parcel” (the “March 2015 Action”). (Compl ¶ 9.) From the date this motion was adopted through March 2016, Forat worked with private consultants hired by him and the staff at the City Planning Department to prepare an EIR and process the amendments. (Compl. ¶¶ 12-14.)

On April 1, 2016, following a motion from Councilmember Ryu to rescind the March 2015 Action, the City Council held a public hearing on the motion. (Compl. ¶ 19.) The City Council held eight minutes of public comment, only one minute for each of Forat and his counsel, then adjourned to closed session for an hour and a half pursuant to Government Code section 54956.9(d)(2) and (e)(5). (Compl. ¶¶ 19-20.) Following the closed session, the City Council adopted the motion with little discussion (the “April 2016 Action”). (Writ ¶ 20.)

Following a letter from Forat to the City Council asserting that the City Council’s actions violated the Ralph M. Brown Act, the City Attorney’ Office wrote that two motions would be added to the City Council’s agenda: (1) a motion to rescind the April 2016 Action, and if that motion passes, (2) a repeat to the motion addressed at the April 1, 2016 hearing to rescind the March 2015 Action. (Compl. ¶ 22.) At a May 23, 2016 hearing, both motions passed 11-0, with public comment limited to one minute for each Forat and his counsel (the “May 2016 Action”). (Compl. ¶ 23.)

Forat alleges that the May 2016 Action did not cure the Brown Act violations at the April 2016 Action. (Compl. ¶24.) Forat also submitted a claim for reimbursement to the City on April 19, 2016 seeking $400,000 for out-of-pocket expenses of architects, EIR consultants, civil engineers, environmental engineers, traffic engineers, land use consultants, soils consultants and attorneys, and for additional damages of $30,000,000 due to lost opportunity to sell the Property for that amount in May 2016. The City rejected both claims on May 4, 2016. (Compl. ¶ 26.) Forat thereafter submitted updated information to the City on May 19, 2016 but has not received a response. (Compl. ¶ 27.)

procedural history

Forat filed a Verified Petition for Writ of Mandate and Complaint on June 28, 2016 alleging six causes of action:

  1. Writ of Mandate

  2. Inverse Condemnation

  3. Promissory Estoppel

  4. Declaratory Relief

  5. Violation of Civil Rights

  6. Violation of Brown Act

On September 15, 2016, the City filed a Demurrer to the Petition on all causes of action.

On October 6, 2016, the Court in Dept. 85 severed the First, Fourth, and Sixth Causes of Action. The Court ordered the Second, Third, and Fifth Causes of Action stayed pending resolution of the remaining causes of action. The demurrer was ordered to proceed on the First, Fourth, and Sixth Causes of Action, only.

On November 15, 2016, the Court in Department 85 sustained the demurrer to the First Cause of Action and overruled the demurrer to the Fourth and Sixth Causes of Action.

From approximately October 2016 through April 2018, the parties were engaged in discovery motions.

On February 6, 2019, Forat filed an Opening Brief re: Violation of Brown Act.

On May 28, 2019, the Court in Department 85 denied Forat’s Petition for Writ of Mandate. The Court’s ruling was as follows: “The Petition’s Brown Act and declaratory relief claims are denied. The court previously sustained the demurrer to the first cause of action for writ of mandate without leave to amend. The court also previously stayed the Petition’s second, third and fifth causes of action.” The case was ordered transferred to an IC court for resolution of the remaining claims.

On May 30, 2019, this case was reassigned to this Department 78.

On September 19, 2019, the Defendants filed an Amended Demurrer to the remaining Second, Third, and Fifth Causes of action. .

On December 10, 2019, this Court overruled the Amended Demurrer for the Second Cause of Action as it related to the alleged $400,000 investments in experts and environmental review, and sustained with leave to amend as it related to the loss of the $30,000,000 sale opportunity; and sustained with leave to amend for the Third and Fifth causes of action.

On December 20, 2019, Forat filed a First Amended Petition (“FAP”).

On July 6, 2020, this Court overruled Defendants’ demurrer to the FAP a to the Second Cause of Action, and sustained without leave to amend as to the Third and Fifth Causes of Action.

On November 4, 2020, Defendants filed the instant Motion for Summary Judgment.

On January 6, 2021, Forat filed an Opposition.

On January 15, 2021, the Defendants filed a Reply.

Discussion

  1. REQUESTS FOR JUDICIAL NOTICE

Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit. (California Code of Civil Procedure §438(d)). Any request for judicial notice must be made in a separate document listing the items for which notice is requested. (CRC 3.1113(l)). Judicial notice may be taken of “(b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (f) The law of an organization of nations and of foreign nations and public entities in foreign nations. (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452.)

The City requests that this Court take judicial notice of (1) various Los Angeles Charter and Municipal Code sections; (2) City Council records of council meeting agendas, transcripts of council meeting proceedings, council actions, and various letters; (3) Official Election Results General Municipal Elections May 19, 2015; (4) County Recorder Documents re Transfer of APNs and Deed of Trust. The Court DENIES the requests as to the letters (Exhibits 21, 23, 27, 28), and GRANTS as to the remainder.

  1. OBJECTIONS

Defendants object to various evidence presented by Plaintiff Forat. Objections Nos. 1-21, 23-25, 27, 29-30, 34, 37-46, 48-55, 60-63, 69-79, and 85 are SUSTAINED. The remainder are OVERRULED.

  1. MOTION FOR SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Neither a moving or responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Here, the City and City Council (the “Defendants”) moves for summary judgment on the FAP; or in the alternative, summary adjudication of the remaining cause of action for inverse condemnation/unconstitutional takings (Second Cause of Action), and of the First Affirmative Defense in the City’s Answer against both Forat and Studio City Car Wash, Inc. on the issue of ripeness. (Motion, Notice at pp. 2-3.)

  1. SECOND CAUSE OF ACTION – INVERSE CONDEMNATION/ UNCONSTITUTIONAL TAKINGS

Defendants argue they are entitled to summary judgment on the basis of “ripeness.” (Motion at p. 21.) They contend that Plaintiffs’ claim is not ripe because “Plaintiffs have not made any application to develop the Property with one-family dwellings under existing zoning; or for any relief under any of the existing regulations; or for relief under any Hillside Regulation or any concrete effort for a General Plan Amendment (“GPA”) for development materially different than that for which consideration was rescinded.” (Motion at p. 21.) They argue that there has been “no final determination” because the “Council’s rescission and resulting Planning Department termination relate only to a [GPA] and [Zoning Change (“ZC”)][and thus the] City has not taken any action with affects any existing development rights of the property.” (Motion at p. 23.)

The FAP alleges that Forat spent approximately $400,000 to undertake the environmental review and project planning required by the Defendants’ March 2015 Action and entered into a contract to sell the Development Property due to anticipated approvals by the March 2015 Action. (FAP ¶ 37.) The FAP further alleges that as a result of Defendants’ April 1 and May 13, 2016 rescission motions, Forat is unable to proceed with developing and selling the property in accordance with the March 2015 Action. (FAP ¶¶ 36, 38) The FAP alleges that the Defendants’ rescission actions amount to a taking because Defendants “have made it legally and economically impossible for Forat to beneficially and productively use the Property and their actions have significantly impaired the value of the Property[.]” (FAP ¶ 38.)

Generally, there are two components for a court reviewing a taking claims: the plaintiff must establish: (1) that the regulation has “taken” his property (i.e. “goes too far”), and (2) that any proffered compensation is not “just.” (MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340, 348.) A prerequisite to a takings claim “is a final and authoritative determination of the type and intensity of development legally permitted on the subject property. A court cannot determine whether a regulation has gone “too far” unless it knows how far the regulation goes.” (Id.) There is no “set formula to determine where regulation ends and taking begins.” (Calprop Corp. v. City of San Diego (2000) 77 Cal.App.4th 582, 591.)

Ultimately, the primary concern in a takings claim is whether “the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle[.]” (Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1019.)

The City presents evidence that Forat has not attempted to develop the property under its current zoning rules with one-family dwellings or any other allowed use under existing regulations. (UMF ¶¶ 55-57.) The City states that the property is currently subject to RE40 zoning, which “permits a multiple of uses including one-family dwellings, but not multiple dwellings or apartment houses.” (UMF ¶¶ 6-7.) Under the “Minimum Residential General Plan,” as applied, and the “Mulholland Scenic Parkway Specific Plan,” the property is restricted against multiple dwellings/apartments. (UMF ¶¶ 8-11.) Forat has not applied to develop any part of the Property under the existing zoning laws although development of the property with one-family dwellings is not precluded by any actions by the City Council. (UMF ¶¶ 57-58.) Further, the City “has not made a final decision about the nature and scope of development that would ultimately be allowed on the Property.” (UMF ¶ 60.)

In Opposition, Forat argues that “there is a dispute of fact as to whether Defendants’ actions in rescinding the March 2015 Action, halting the preparation of the EIR, refusing to conduct public hearings on Forat’s pending application for the GPA, ZC, SRA and EIR, refusing to consider a Planning Director initiated GPA, and the infeasibility of developing the Property with estate-size single-family homes under the existing zoning and plan designation, all show that the City has effected an unconstitutional taking for which Forat is entitled to compensation.” (Oppo. at pp. 14-15.) Forat contends that “there is proof, or at least a dispute of fact, as to whether the City’s actions constitute a final determination of the permitted uses of the Property.” (Oppo. at p. 15.))

The Court disagrees that there is material issue of disputed fact that precludes a summary judgment in this action. Forat’s argument is premised on the theory that the City effectuated a taking by refusing to change the General Plan and other zoning codes from their current zoning designation (a designation at the time he purchased the property) to a designation that he would prefer (i.e., one that would allow him to build multi-unit housing). Forat’s argument, that this instant Motion should be denied, is based on the City’s actions in declining to alter the zoning designation on the property.

Forat’s arguments miss the mark. When Forat purchased the property (AP Nos. 557-016-002, 557-016-001 and 557-016-006) in or about 2007 (UMF ¶¶ 3-4), the parcels were zoned, as they are currently, as RE40 with restrictions on multiple dwelling/apartment construction. (UMF ¶¶ 6-7.) There is no dispute on this issue. Forat does not argue that the City changed the zoning designation after he purchased it, only that the City refused to change the zoning designation after Councilman LaBonge allegedly told Forat that “if he bought the Property and gave access to the City to get to Lake Hollywood from Cahuenga Boulevard, the City would make it happen for Mr. Forat to develop the lower portion of the Property with a major commercial or multi-family development.” (PMF ¶ 123.)

A “regulatory taking” is “one that results from the application of zoning laws or regulations which limit development of real property[.]” (Jefferson Street Ventures, LLC v. City of Indio (2015) 236 Cal.App.4th 1175, 1195.) However, in this case, the zoning laws as to the property did not change. Further, the zoning laws (both current and at the time that Forat acquired the property) do not prevent the property from being developed. In Jefferson the City of Indio approved a Project Master Plan, on property which was already owned, with restrictions to indefinitely prohibit any development of the a 1/3 of the property to preserve the city’s rights for a freeway interchange project. (Id. at 1198.) The court found that this was a taking. (Id.) The facts in Jefferson are entirely different from the facts in the instant case, including the fact that the project in Jefferson was consistent with the zoning laws but the city nonetheless refused to approve the project without prohibiting construction on a large portion of land. (Id. at 1186-1188.) The project in Jefferson “fully satisfied all the City's requirements for development of the Property” and the developer was “denied all beneficial use of the Alternative 1 Acreage and the Temporary No–Build Area on which no development is permitted.” (Id. at 1202.)

Forat has not cited any case law where a taking has been found based on a public entity’s failure to change existing zoning laws. Here, Forat has not attempted to develop the property under the zoning laws to which it has been subject since Forat purchased the property. Nor has Forat provided any evidence that the Defendants changed the zoning laws from their existing uses. Because Forat has not provided any evidence that he has attempted any development under the existing zoning laws, or that he has been prevented by the City from developing under the existing zoning laws, the Court finds that there is no disputed issue of material fact on the issue of whether that the claim is ripe. The claim cannot be ripe until Forat attempts development and is prohibited from developing. The property.

Accordingly, the Court finds that there are no material issues of disputed fact as to the remaining Second Cause of Action.

The Motion for Summary Judgment is GRANTED.

DATED: February 9, 2021

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BS163322    Hearing Date: July 06, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

behzad forat;

Plaintiff,

vs.

CITY OF LOS ANGELES, et al.;

Defendants.

Case No.:

BS163322

Hearing Date:

July 6, 2020

[TENTATIVE] RULING RE:

Defendants CITY OF LOS ANGELES AND LOS ANGELES CITY COUNCIL’s demurrer to the second, third, and fifth claims in the first amended petition for writ of mandate and complaint

The Demurrer to the First Amended Petition of Defendants City of Los Angeles and Los Angeles City Council, is OVERRULED as to the Second Cause of Action; and SUSTAINED without leave to amend as to the Third and Fifth Causes of Action.

Factual Background

This is a land use/takings and Brown Act action. The Verified Petition for Writ of Mandate and Complaint alleges as follows. Petitioners Behzad Forat and Studio City Car Wash (collectively, “Forat”) seek a writ of mandate to set aside and vacate a decision of the City of Los Angeles (the “City”) and the Los Angeles City Council (“City Council”) to rescind an earlier action that would have commenced processing a General Plan Amendment and Zone Change for property owned by Forat. (Compl. at p. 1.) Forat owns two parcels of located on E. Cahuenga Blvd. (the “Property”), totaling 19 acres on the east side of the 101 freeway in the Cahuenga Pass. (Compl. ¶ 5.) In 2014, a City Councilmember asked to purchase part of the Property for the City to use as open space parkland with a small parking lot and hiking trail. (Compl. ¶ 6.) Following negotiations, Forat agreed to donate ten acres to the City (the “Donation Property”) in exchange for the City allowing Forat to build an apartment building on the remaining acreage of the Property (the “Development Property”). (Compl. ¶ 6.)

On March 18, 2015, the City Council adopted a Motion that authorized the City to acquire the Donation Property after the Development Property was rezoned, and instructed the City Planning Department to “initiate consideration of a General Plan Amendment and Zone Change, and other City Planning approvals if needed, including the preparation and adoption of any required ordinances, to rezone [the Development Property] as R3 and rezone [the Donation Property] as open space should the City ultimately acquire that parcel” (the “March 2015 Action”). (Compl ¶ 9.) From the date this motion was adopted through March 2016, Forat worked with private consultants hired by him and the staff at the City Planning Department to prepare an EIR and process the amendments. (Compl. ¶¶ 12-14.)

On April 1, 2016, following a motion from Councilmember Ryu to rescind the March 2015 Action, the City Council held a public hearing on the motion. (Compl. ¶ 19.) The City Council held eight minutes of public comment, only one minute for each of Forat and his counsel, then adjourned to closed session for an hour and a half pursuant to Government Code section 54956.9(d)(2) and (e)(5). (Compl. ¶¶ 19-20.) Following the closed session, the City Council adopted the motion with little discussion (the “April 2016 Action”). (Writ ¶ 20.)

Following a letter from Forat to the City Council asserting that the City Council’s actions violated the Ralph M. Brown Act, the City Attorney’ Office wrote that two motions would be added to the City Council’s agenda: (1) a motion to rescind the April 2016 Action, and if that motion passes, (2) a repeat motion of that addressed at the April 1, 2016 hearing to rescind the March 2015 Action. (Compl. ¶ 22.) At a May 23, 2016 hearing, both motions passed 11-0, with public comment limited to one minute for each Forat and his counsel (the “May 2016 Action”). (Compl. ¶ 23.)

Forat alleges that the May 2016 Action did not cure the Brown Act violations at the April 2016 Action. (Compl. ¶24.) Forat also submitted a claim for reimbursement to the City on April 19, 2016 seeking $400,000 for out-of-pocket expenses of architects, EIR consultants, civil engineers, environmental engineers, traffic engineers, land use consultants, soils consultants and attorneys, and for additional damages of $30,000,000 due to lost opportunity to sell the Property for that amount in May 2016. The City rejected both claims on May 4, 2016. (Compl. ¶ 26.) Forat thereafter submitted updated information to the City on May 19, 2016 but has not received a response. (Compl. ¶ 27.)

procedural history

Forat filed a Verified Petition for Writ of Mandate and Complaint on June 28, 2016 alleging six causes of action:

  1. Writ of Mandate

  2. Inverse Condemnation

  3. Promissory Estoppel

  4. Declaratory Relief

  5. Violation of Civil Rights

  6. Violation of Brown Act

On September 15, 2016, the City filed a Demurrer to the Petition on all causes of action.

On October 6, 2016, the Court in Dept. 85 severed the First, Fourth, and Sixth Causes of Action. The Court ordered the Second, Third, and Fifth Causes of Action stayed pending resolution of the remaining causes of action. The demurrer was ordered to proceed on the First, Fourth, and Sixth Causes of Action, only.

On November 15, 2016, the Court sustained the demurrer to the First Cause of Action and overruled the demurrer to the Fourth and Sixth Causes of Action.

From approximately October 2016 through April 2018, the parties were engaged in discovery motions.

On February 6, 2019, Forat filed an Opening Brief re: Violation of Brown Act.

On May 28, 2019, the Court denied Forat’s Petition for Writ of Mandate. The Court’s ruling was as follows: “The Petition’s Brown Act and declaratory relief claims are denied. The court previously sustained the demurrer to the first cause of action for writ of mandate without leave to amend. The court also previously stayed the Petition’s second, third and fifth causes of action.” The case was ordered transferred to an ICC court for resolution of the remaining claims.

On May 30, 2019, this case was reassigned to this Department 78.

On September 19, 2019, the Defendants filed an Amended Demurrer to the remaining Second, Third, and Fifth Causes of action. .

On December 10, 2019, this Court overruled the Amended Demurrer for the Second Cause of Action as it related to the alleged $400,000 investments in experts and environmental review, and sustained with leave to amend as it related to the loss of the $30,000,000 sale opportunity; and sustained with leave to amend for the Third and Fifth causes of action.

On December 20, 2019, Forat filed a First Amended Petition (“FAP”).

On February 19, 2020, the Defendants filed the instant Demurrer to the FAP.

On April 15, 2020, Forat filed an Opposition.

On April 21, 2020, the Defendants filed a Reply.

Discussion

  1. REQUESTS FOR JUDICIAL NOTICE

Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit. (California Code of Civil Procedure §438(d)). Any request for judicial notice must be made in a separate document listing the items for which notice is requested. (CRC 3.1113(l)). Judicial notice may be taken of “(b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (f) The law of an organization of nations and of foreign nations and public entities in foreign nations. (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452.)

The City requests that this Court take judicial notice of various Los Angeles Superior Court Orders, City of Los Angeles Charter and Municipal Code sections, the Los Angeles Zoning Map – Zone Information Map Access System Parcel Numbers, Los Angeles City Council action, and a Master Land Use Application. The Court grants these requests.

DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Here, the City and City Council (the “Defendants”) demurrer to the three remaining causes of action for inverse condemnation/unconstitutional takings (Second Cause of Action), promissory estoppel (Third Cause of Action), and violation of civil rights/due process (Fifth Cause of Action). The Defendants argue, as they did in their Demurrer to the original Petition, that Forat’s Second, Third, and Fifth Causes of Action do not and cannot state a cause of action and must be dismissed. (Motion at p. 9.)

  1. SECOND CAUSE OF ACTION – INVERSE CONDEMNATION/UNCONSTITUTIONAL TAKINGS

Defendants contends that the takings cause of action is not ripe “because Plaintiffs do not allege any attempt to develop their Property under existing single-family zoning.” (Motion at pp. 9-10.) Defendants contend that a taking claim is not ripe without efforts to develop the property under existing zoning. (Motion at pp. 14-15.)

The FAP alleges that Forat spent approximately $400,000 to undertake the environmental review and project planning required by the Defendants’ March 2015 Action and entered into a contract to sell the Development Property due to anticipated approvals by the March 2015 Action. (FAP ¶ 37.) The FAP further alleges that as a result of Defendants’ April 1 and May 13 rescission motions, Forat is unable to proceed with developing and selling the property in accordance with the March 2015 Action. (FAP ¶¶ 36, 38) The FAP alleges that the Defendants’ rescission actions amount to a taking because Defendants “have made it legally and economically impossible for Forat to beneficially and productively use the Property and their actions have significantly impaired the value of the Property[.]” (FAP ¶ 38.)

Generally, there are two components for a court reviewing a taking claims: the plaintiff must establish: (1) that the regulation has “taken” his property (i.e. “goes too far”), and (2) that any proffered compensation is not “just.” (MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340, 348.) A prerequisite to a takings claim “is a final and authoritative determination of the type and intensity of development legally permitted on the subject property. A court cannot determine whether a regulation has gone “too far” unless it knows how far the regulation goes.” (Id.) There is no “set formula to determine where regulation ends and taking begins.” (Calprop Corp. v. City of San Diego (2000) 77 Cal.App.4th 582, 591.)

Defendants rely on Calprop Corp., supra, 77 Cal.App.4th 582, and Milagra Ridge Partners, Ltd. v. City of Pacifica (1998) 62 Cal.App.4th 108, arguing that the takings claim cannot be ripe without an application to develop property under existing zoning. (Motion at pp. 15-16.)

However, the Court disagrees with the Defendants’ interpretation and application of the above-listed cases. In Calprop, landowners EEPOA purchased property from the City of San Diego and informally worked with the city to update a community plan and zoning ordinances for the East Elliot community to allow them to build a residential development. (Calprop Corp., supra, 77 Cal.App.4th at 587.) EEPOA did not ask the city planning commission or city council to consider any version of a plan. (Id. at p. 588.) Calprop broke-off from EEPOA and decided to try to build a landfill instead of a residential development, but the planning commission denied Calprop’s application for an amendment to the community plan to build the landfill. (Id. at 589.) The court held that Calprop’s claim was not ripe because EEPOA “never sought approval for any specific project, let alone one which met the existing plan and zoning requirements for the area[.]” (Id. at 598.) Further, the claim was not ripe because “The city's unwillingness to approve an intense and unique use such as a landfill does not by any stretch of the imagination establish that the city will prevent Calprop from developing its land in any economically valuable manner.” (Id.) Accordingly, the Court’s decision was rooted in the idea that the City’s rejection of Calprop’s proposal did not necessarily prohibit other types of development of the land and “does not indicate in any manner the level of development the city would permit under the existing plan and zoning.” (Id.)

Milagra, on which the court in Calprop relied, was similarly concerned with alternative development possibilities: “Since Milagra has not submitted an application to develop the property under the current zoning, we have no way of determining how the City will react to any development proposal.” (Milagra Ridge Partners, Ltd. v. City of Pacifica, supra, 62 Cal.App.4th at 119.)

Here, Defendants have extracted excerpts from the courts’ rulings in both Milagra and Calprop which state that a claim is not ripe without an application to develop under the existing zoning. (Motion at p. 16.) However, Defendants are specifically avoiding the courts’ reasonings in both cases, which is: in those two specific cases, the court was unable to determine whether the developer had been denied the “economically viable use of its land” without a denied application under the current zoning. (Milagra Ridge Partners, Ltd. v. City of Pacifica, supra, 62 Cal.App.4th at 119 citing Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1020.)

The primary concern in a takings claim is whether “the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle[.]” (Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1019.)

Here, the FAP has alleged that such deprivation is the case for Forat. The FAP alleges that Forat, unlike the developers in Calprop, began preparing to file an application for a specific project by preparing the “plans, studies and reports necessary for an EIR,” submitting “a draft initial study” to the City’s Planning Department. (FAP ¶ 12.) The FAP alleges that the Defendants’ actions prohibited Forat from completing the environmental review and public hearings for the property, making it “impossible for Forat to either use or receive benefit from his investment in the Property.” (FAP ¶ 37.) Specifically, the FAP alleges that Defendants’ actions have prohibited Forat from developing on the property entirely because the City is preventing Forat from completing the environmental review of the property:By preventing Forat from completing the EIR and by refusing to consider Forat’s application prompted by the City’s own March 2015 Action, Respondents and Defendants have made it legally and economically impossible for Forat to beneficially and productively use the Property and their actions have significantly impaired the value of the Property to an amount to be proven at trial that is less than Forat’s purchase price.” (FAP ¶ 38.)

The Court interprets Calprop and Milagra as holding that a takings claim is not ripe if it is possible for land to be developed in another way (even if not the developer’s preference). The reason for the requirement that an application to be filed and rejected is to allow a court to determine what alternatives are for use of the land and whether there are any such alternatives. The FAP alleges that Defendants refused to allow Forat to finalize and submit his application and refused to consider alternatives. Accepting these allegations are true as the Court must in ruling on the demurrer the Court does not need to determine “how the City will react to any development proposal” because the allegations (which the Court accepts as true for purposes of demurrer) are that Defendants effectively rejected all development proposals on Forat’s property. (Milagra Ridge Partners, Ltd. v. City of Pacifica, supra, 62 Cal.App.4th at 119.)

Lastly, the Court rejects Defendants property interest argument, which they also made in their previous demurrer. (Motion at p. 18.) “Property” for purposes of a taking is not limited merely to physical property but extends to a “range of interests that qualify for protection as ‘property’ under the Fifth and Fourteenth Amendments.” (Lucas v. South Carolina Coastal Council 1030.) Property for this purpose may include “all economically productive or beneficial uses of land[.]” (Id.) Here, for purposes of demurrer, because the FAP alleges that Defendants’ actions have made it impossible for Forat to use the property or benefit from his investment in the property, the complaint sufficiently alleges that that there is a property interest at stake.

Accordingly, the Court finds that the Second Cause of Action is ripe. The Demurrer to the Second Cause of Action is OVERRULED.

  1. Third Cause of Action – Promissory Estoppel

Defendants argue that the FAP does not state a claim for promissory estoppel because (1) it does not allege a clear and unambiguous promise; (2) estoppel does not exist against government without a land use approval; and (3) the estoppel allegations are barred by governmental immunity. (Motion at pp. 19-20.)

As a preliminary matter, as the Court held in its ruling on the previous demurrer, principles of promissory estoppel apply to claims against the government, particularly where the application of the doctrine would further public policies and prevent injustice. (US Ecology, Inc. v. State of California (2001) 92 Cal.App.4th 113, 131; Kajima/Ray Wilson v. Los Angeles County Metropolitan Transp. Authority (2000) 23 Cal.4th 305, 313.)

The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance. (Flintco Pacific, Inc. v. TEC Management Consultants, Inc. (2016) 1 Cal.App.5th 727, 734.)

Here, the FAP alleges that the promise is the March 2015 Action, is a “promise that the City would consider the GPA, ZC, SPR for the Development Property in exchange for the anticipated acquisition of the Donation Property.” (FAP 45.) The March 2015 Action, of which this Court takes judicial notice, stated that the City Council would “Authorize and Instruct the Department of General Services to enter into negotiations with the current owner of the property [], in order for the City to acquire the parcel for ultimate preservation as public open space[.]” (RJN Exh. 11, p. 73.)

“[A] promise is an indispensable element of the doctrine of promissory estoppel.” (Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1044.) A promise must be clear and unambiguous in its terms and cannot be established from preliminary negotiations and discussions. (Id.)

In this case, the March 2015 Action is a mere factual statement that the City would enter negotiations with Forat. On its face, the March 2015 Action does not state that the City will unquestionably acquire the parcel. “A ‘promise’ is an assurance that a person will or will not do something.” (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 417, as modified (Apr. 29, 2015).) A statement of fact, as is the case here, does not guarantee Forat that the Defendants will acquire the property in exchange for Forat’s building rights; it merely states a fact that the City will enter negotiations. (Id.) Negotiations, by definition, do not guarantee an agreement.

Plaintiff was on notice of this missing element as a result of the Court’s ruling on the prior demurrer and has not added any allegation or suggested any allegation it could make to supply a basis for a contrary ruling. Accordingly, the Demurrer to the Third Cause of Action is SUSTAINED without leave to amend.

  1. Fifth Cause of Action – Violation of Civil Rights/Due Process

Defendants argue that Forat does not and cannot allege any procedural due process violations because he does not allege any property interest protected by the due process clause. (Motion at p. 21.)

“The Fourteenth Amendment provides that ‘[n]o State shall ... deprive any person of life, liberty, or property, without due process of law....’ Nonetheless, before reaching any question about the fairness of a particular proceeding under the federal Constitution, we must first address whether a protected interest—life, liberty, or property—is implicated. If no such interest is involved, then the procedural protections of the due process clause do not come into play.” (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1178, as modified on denial of reh'g (Sept. 11, 1996).)

For purposes of due process, a property interest may exist where a “property-holder possesses a legitimate claim of entitlement to a permit or approval[.]” (Id. at 1180.) A cognizable property interest only exists “when the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured,” and this standard focuses on the amount of discretion allowed to the agency not the amount of discretion exercised. (Id.)

As the Court previously held in ruling on the demurrer to the original petition, there is no indication in the FAP that the Defendants’ discretion was so narrowly circumscribed that Forat was guaranteed approval of his project. The FAP and the March 2015 Action state the City Council voted to: “1. AUTHORIZE and INSTRUCT the Department of General Services to enter into negotiations with the current owner of the property […], in order for the City to acquire the [Donation Property][and…] 2. INSTRUCT the Planning Department, in consultation with Council District Four, to initiate consideration of a General Plan Amendment and Zone Change, and other City Planning approvals if needed […] to rezone [the Development Property] as R3 and to rezone the [Donation Property] as open space should the City ultimately acquire that parcel.” (FAP ¶ 9; RJN, Exh. 11.) The FAP further alleges that Forat worked closely with the City’s staff to prepare the necessary reports for the EIR, and that a draft initial study was in review by the Planning Commission and a traffic study was in review by the Department of Transportation. (FAP ¶ 12.)

Generally, there is no substantive due process violation in a local government’s rejection of a development project, even in the context of misleading behavior by the city council resulting in it changing course. (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 857.)

The allegations in the FAP on this issue are the same as in the original Petition. The FAP does not allege that the project had already been approved or that permits has already been issued. Nor does the FAP allege that the City was otherwise bound by its indication (by seeking to enter into negotiations with Forat) to rezone the Property and acquire the Donation Property. Thus, the FAP does not allege a property interest for purposes of due process.

Accordingly, the Demurrer to the Fifth Cause of Action is SUSTAINED without leave to amend

DATED: July 6, 2020

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

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