This case was last updated from Los Angeles County Superior Courts on 05/26/2019 at 14:37:59 (UTC).

DAMIAN LEMONS ET AL VS CITY OF LOS ANGELES ET AL

Case Summary

On 10/06/2016 DAMIAN LEMONS 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 Judge overseeing this case is SAMANTHA JESSNER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5799

  • Filing Date:

    10/06/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Writ Of Mandamus

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

SAMANTHA JESSNER

 

Party Details

Plaintiffs, Petitioners and Appellants

LEMONS DAMIAN

LEMONS DENISE

LOS ANGELES CIT OF

CITY OF LOS ANGELES DEPARTMENT OF CITY

CITY OF LOS ANGELES DEPARTMENT OOF BUILD-

CITY OF LOS ANGELES OFFICE OF HISTORIC

CITY OF LOS ANGELES BOARD OF BUILDING AND

Defendants, Respondents and Appellants

LOS ANGELES CIT OF

CITY OF LOS ANGELES DEPARTMENT OF CITY

DOES 1-25

CITY OF LOS ANGELES DEPARTMENT OOF BUILD-

CITY OF LOS ANGELES OFFICE OF HISTORIC

CITY OF LOS ANGELES BOARD OF BUILDING AND

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

KASSOUNI LAW

KASSOUNI TIMOTHY VARTKES

Respondent Attorney

SEWELL CHARLES DAVID

 

Court Documents

STIPULATION AND ORDER FOR CONTINUANCE OF HEARING DATE ON PETITION FOR WRIT OF MANDATE AND MODIFIED BRIEFING SCHEDULE

2/15/2018: STIPULATION AND ORDER FOR CONTINUANCE OF HEARING DATE ON PETITION FOR WRIT OF MANDATE AND MODIFIED BRIEFING SCHEDULE

CITY OF LOS ANGELES' OPPOSITION TO PETITION FOR WRIT OF MANDATE

9/4/2018: CITY OF LOS ANGELES' OPPOSITION TO PETITION FOR WRIT OF MANDATE

Unknown

9/17/2018: Unknown

Minute Order

12/3/2018: Minute Order

Minute Order

12/11/2018: Minute Order

Unknown

2/7/2019: Unknown

Proof of Service by Mail

2/13/2019: Proof of Service by Mail

Unknown

2/22/2019: Unknown

Proof of Service by Mail

3/8/2019: Proof of Service by Mail

Notice of Status Conference and Order

3/12/2019: Notice of Status Conference and Order

Declaration

4/2/2019: Declaration

Minute Order

4/4/2019: Minute Order

Notice of Status Conference and Order

4/17/2019: Notice of Status Conference and Order

Unknown

5/6/2019: Unknown

PROOF OF SERVICE SUMMONS

10/13/2016: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

10/13/2016: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

10/14/2016: PROOF OF SERVICE SUMMONS

CITY OF LOS ANGELES' ANSWER TO VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INVERSE CONDEMNATION

6/5/2017: CITY OF LOS ANGELES' ANSWER TO VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INVERSE CONDEMNATION

32 More Documents Available

 

Docket Entries

  • 05/06/2019
  • Appeal - Notice Court Reporter to Prepare Appeal Transcript; Filed by Clerk

    Read MoreRead Less
  • 04/17/2019
  • Notice of Status Conference and Order; Filed by Clerk

    Read MoreRead Less
  • 04/10/2019
  • at 1:30 PM in Department 1, Samantha Jessner, Presiding; Court Order

    Read MoreRead Less
  • 04/10/2019
  • Certificate of Mailing for (Minute Order (Court Order Re Reassignment) of 04/10/2019); Filed by Clerk

    Read MoreRead Less
  • 04/10/2019
  • Minute Order ( (Court Order Re Reassignment)); Filed by Clerk

    Read MoreRead Less
  • 04/04/2019
  • at 1:30 PM in Department 82; Status Conference - Held

    Read MoreRead Less
  • 04/04/2019
  • Minute Order ( (STATUS CONFERENCE)); Filed by Clerk

    Read MoreRead Less
  • 04/02/2019
  • Declaration (OF CHARLES D. SEWELL REGARDING STATUS OF THE PROPOSED JUDGMENT IN THIS CASE); Filed by Los Angeles, Cit of (Respondent); City of Los Angeles Department of City (Respondent); City of Los Angeles Office of Historic (Respondent) et al.

    Read MoreRead Less
  • 03/12/2019
  • Notice of Status Conference and Order; Filed by Clerk

    Read MoreRead Less
  • 03/12/2019
  • Notice of Status Conference and Order; Filed by Clerk

    Read MoreRead Less
69 More Docket Entries
  • 10/13/2016
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 10/13/2016
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 10/12/2016
  • Proof-Service/Summons; Filed by Petitioner

    Read MoreRead Less
  • 10/12/2016
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 10/11/2016
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

    Read MoreRead Less
  • 10/11/2016
  • NOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

    Read MoreRead Less
  • 10/11/2016
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

    Read MoreRead Less
  • 10/06/2016
  • VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INVERSE CONDEMNATION

    Read MoreRead Less
  • 10/06/2016
  • SUMMONS ON PETITION

    Read MoreRead Less
  • 10/06/2016
  • Petition; Filed by null

    Read MoreRead Less

Tentative Rulings

Case Number: BS165799    Hearing Date: November 17, 2020    Dept: 61

Defendants City of Los Angeles, City of Los Angeles Department of City Planning, City of Los Angeles Office of Historic Resources, City of Los Angeles Department of Building and Safety, and City of Los Angeles Board of Building and Safety Commissioners’s Motion for Summary Judgment is GRANTED.

Defendants to provide notice.

  1. 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).)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) 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.)

Defendants move for summary judgment on the remaining second cause of action for inverse condemnation. They argue that relief on that claim is categorically unavailable to regulatory measures imposed as a penalty for wrongdoing, and that no taking has taken place because the regulation pursuant to which the moratorium was issued is a valid measure to protect public safety. (Motion at pp. 16–22.) Defendants also argue that the moratorium on construction does not constitute a regulatory taking under the ordinary standard pursuant to which such claims are judged. (Motion at pp. 22–28.)

The court agrees that both the first and last of these arguments foreclose the existence of triable issues of fact on Plaintiffs’ claims. Summary judgment is therefore appropriate.

  1. BACKGROUND

Los Angeles has designated Plaintiffs’ property a “contributing element” in a historic preservation overlay zone pursuant to Los Angeles Municipal Code (LAMC) § 12.20.3.(B)(7). (Buitrago Decl. ¶ 13.) Repairs performed on such an element must be approved as conforming to the applicable preservation plan. (LAMC § 12.20.3(I).)

Plaintiffs from November 2014 through February 2015 obtained a variety of permits to perform conforming work on the property. (Buitrago Decl. ¶¶ 14–17.) After receiving reports that illegal demolition work was being performed, Defendants issued orders to comply to stop the demolition work. (Buitrago Decl. ¶ 18.) A hearing was held in January 2016 to determine whether Plaintiffs had violated LAMC § 91.106.1.1 forbidding demolition without a permit. (Buitrago Decl. ¶¶ 20–23.) The hearing officer concluded that Plaintiffs had conducted demolition work far in excess of that permitted, and a one-year moratorium on permits was issued against the subject property under LAMC § 91.106.4.1(10), effective retroactively through the preceding year. (Buitrago Decl. ¶ 23.) This moratorium is the subject of the present action.

  1. TAKINGS LAW

The right to compensation for public takings of property is found in the California and United States Constitutions. (Cal. Const., art. I, § 19; U.S. Const., 5th Amend.) A “taking” under this law may be direct and physical invasion of property by the government, or it may take the form of “government regulation . . . so onerous that its effect is tantamount to a direct appropriation or ouster.” (Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 295.)

There are two types of regulatory acts that are considered “categorical” or per se takings for constitutional purposes. The first requires “an owner to suffer a permanent physical invasion of her property.” (Lingle v. Chevron U.S.A. Inc. (2005) 544 U.S. 528, 538.) “A second categorical rule applies to regulations that completely deprive an owner of all economically beneficial use of her property.” (Ibid., internal quotation marks, alterations, and citations omitted.)

Neither of these categorical or per se takings is alleged here. The alleged taking at issue is neither a direct physical intrusion nor a deprivation of all economically beneficial use, but a temporary one-year moratorium on construction for a given parcel. As stated in the court’s order on Defendants’ prior motion for judgment on the pleadings, the United States Supreme Court has removed temporary moratoria on construction from the category of per se takings, even when they effect total deprivation of economic use of the property for the duration: “[T]he answer to the abstract question whether a temporary moratorium effects a taking is neither ‘yes, always’ nor ‘no, never’; the answer depends upon the particular circumstances of the case.” (Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302, 321.)

When such categorical rules are off the table, the framework for takings analysis is that set forward by the United States Supreme Court in Penn. Central. Transportation Co. v. City of New York (1978) 438 U.S. 104:

In engaging in these essentially ad hoc, factual inquiries, the Court's decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. So, too, is the character of the governmental action. A “taking” may more readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.

(Penn. Cent. Transp. Co. v. City of New York (1978) 438 U.S. 104, 124.) The factors ordinarily to be considered in determining whether a given instance of regulation constitutes a taking are thus (1) the economic impact, primarily determined by reference to the investment-backed expectations of the owner of the affected property, and (2) the character of the governmental action.

  1. PENALTIES AND TAKINGS

Defendants argue that the above framework is ill-applied to the facts of this case, both because the “taking” at issue here was a penalty applied particularly to Plaintiffs as a result of their violation of applicable building codes, and also because the law pursuant to which the “taking” was effectuated is a reasonable public safety measure. (Motion at pp. 16–22.)

It must first be explained why this second argument — that health and safety regulations cannot give rise to takings for which the government must provide compensation — is defective. Defendants rely on authority stating that regulations reasonably enacted to prohibit land uses that are “prejudicial to the health, morals, or the safety of the public” cannot give rise to a taking. (Motion at p. 19, citing Goldblatt v. Hempstead (1962) 369 U.S. 590.) But this is merely to repeat the argument that this court rejected on Defendants’ last motion. As the court pointed out last time, there is no general “police powers” exception to takings law. “[T]he question is not whether a regulation of private property is effective in achieving some legitimate public purpose. Instead, the goal is to assess the magnitude or character of the burden a particular regulation imposes upon private property rights in order to determine whether its effects are functionally comparable to government appropriation or invasion of private property.” (Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161, 184, internal quotation marks omitted.) The authority relied upon by Defendants for the contrary proposition addressed the standard applicable to due process challenges against an allegedly invalid ordinance. (See Goldblatt, supra, 369 U.S. at p. 594.) The court in that case based its finding that no taking had occurred on the concurrent finding that “there is no evidence in the present record which even remotely suggests that prohibition of further mining will reduce the value of the lot in question.” (Id. at p. 594.) The character of the enactment as a legitimate exercise of the police power, while a relevant factor in takings analysis, is not so generally dispositive that the court may dispense with the ordinary analysis of economic impacts to which such regulations are subject.

Defendants’ other argument as to the “punitive” character of the alleged taking was not addressed in their prior motion, and is more persuasive. Defendants rely on a long line of cases distinguishing civil and criminal forfeitures from takings in the ordinary Fifth Amendment context. (Motion at pp. 16–19.) For example, a vehicle seized after its owner used it for an illegal liaison with a sex worker was held not to constitute a taking because it was “already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.” (Bennis v. Michigan (1996) 516 U.S. 442, 452.) The same analysis has been held true of property seized “through civil rather than criminal proceedings,” such as the seizure of counterfeit goods at the behest of the holder of the original trademark.  (Acadia Technology, Inc. v. U.S. (Fed. Cir. 2006) 458 F.3d 1327, 1332.) Defendants derive from this authority the proposition that seizures or regulatory measures taken to enforce laws against violators are “categorically exempt from takings jurisprudence.” (Motion at pp. 16–17, citing Johnson v. U.S. (Fed. Cl. 2001) 49 Fed.Cl. 648, 654 [“[T]he ‘taking’ of property in connection with a proceeding to enforce the law does not give rise to a per se taking.”].)

Plaintiffs respond that the cases cited uniformly involved physical takings, not regulatory takings, but they do not articulate a rationale for the applicability of the principle to one sphere and not the other. (Opposition at pp. 16–17.) Far more important to Plaintiffs’ argument on this point is their attempt to argue that, in this particular instance, Defendants’ application of the construction moratorium to them “was a discretionary, retaliatory, punitive measure with no direct nexus to any harmful activity that has been alleged against Plaintiffs.” (Opposition at p. 17.) Plaintiffs contend that the permits they sought were to renovate the property, that the City Code contained no definition of “demolition,” and that they always sought to work with city inspectors and officials, who were on notice of the intended scope of Plaintiffs’ project before the moratorium was imposed. (Opposition at pp. 17–18.)

The court has already rejected these arguments. The hearing on Plaintiffs’ petition for writ of mandate occurred on December 11, 2018, in Department 82. The court’s decision, issued on the same day, rejected Plaintiffs’ argument that LAMC § 91.106.4.1(10)’s definition of “demolish” was unconstitutionally vague, and held that the dictionary definition of the term provided sufficient notice of the conduct contemplated, and further provided notice of its applicability to Plaintiffs’ conduct in deconstructing the building on the subject property. (12/11/2018 Order at pp. 9–11.) The court further upheld the decision of the Los Angeles Board of Building and Safety Commissioners that Plaintiffs had indeed engaged in unpermitted demolition work, reasoning that the demolition work they performed was not within the bounds of the permit that they actually obtained. (Id. at pp. 11–13.) And when Plaintiffs argued, based on the same facts presently relied upon, that Defendants ought to be estopped from interfering with the completion of their project based on the representations of city officials that gave Plaintiffs the impression that their contemplated demolition was permitted, the court held that Plaintiffs’ asserted reliance on such representation was unreasonable, given that the permit actually obtained did not purport to cover the work performed. (Id. at pp. 13–14.) The court concluded its analysis by rejecting Plaintiffs’ argument that the one-year moratorium violated the Eighth Amendment’s prohibition on excessive fines and punishments. (Id. at pp. 14–15.) Issues concerning the fairness of the ordinance’s application to Plaintiffs have therefore already been adjudicated against them, and the record before the court stands conclusively for the proposition that Plaintiffs had notice of the applicability of the ordinance, that they violated it, and that they were not unfairly induced to do so by Defendants’ actions. (See Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 487 [“Issues adjudicated in earlier phases of a bifurcated trial are binding in later phases of that trial and need not be relitigated.”].)

And even if no prior decision on these facts had been rendered, Plaintiffs’ arguments concerning the validity of the ordinance’s application to them are distinct from arguments that its application constituted a taking. As the Supreme Court has explained,

[A]n inquiry [into the regulation’s underlying validity] is logically prior to and distinct from the question whether a regulation effects a taking, for the Takings Clause presupposes that the government has acted in pursuit of a valid public purpose. The Clause expressly requires compensation where government takes private property for public use. It does not bar government from interfering with property rights, but rather requires compensation in the event of otherwise proper interference amounting to a taking. Conversely, if a government action is found to be impermissible — for instance because it fails to meet the ‘public use’ requirement or is so arbitrary as to violate due process—that is the end of the inquiry. No amount of compensation can authorize such action.

(Lingle, supra, 544 U.S. at p. 543, internal quotation marks and citations omitted.) The validity of the ordinance and its application to Plaintiffs is thus assumed, both because of this court’s prior decisions on the subject and the inherent nature of the takings analysis under the California and United States constitutions.

This being the case, there is little reason to distinguish the present facts from the cases cited by Defendants involving forfeiture of physical property. Like a forfeiture imposed in a criminal or civil enforcement action as a penalty for wrongdoing, the moratorium at issue here was imposed against Plaintiffs for their violation of Los Angeles building codes, not for “public use” as conventionally understood under constitutional takings jurisprudence. (See (See Bennis, supra, 516 U.S. at p. 452 [forfeiture “impos[es] an economic penalty, thereby rendering illegal behavior unprofitable”].) “The fundamental policy underlying the concept of inverse condemnation is that the costs of a public improvement benefiting the community should be spread among those benefited rather than allocated to a single member of the community.” (Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596, 602.) Yet the very purpose of a penalty is to impose particular burdens upon violators. The court therefore agrees that no action for inverse condemnation may lie for a permit moratorium imposed pursuant to LAMC § 91.106.4.1(10) for violation of LAMC § 91.106.1.1, and summary adjudication of the remaining cause of action for inverse condemnation ought to be GRANTED.

  1. PENN-CENTRAL TAKING

Even if the actions taken here were not construed as per se exempt from ordinary takings jurisprudence, and analyzed as an ordinary regulatory taking, summary judgment would still be appropriate.

The United States Supreme Court has set out the factors for establishing a regulatory taking as follows:

In engaging in these essentially ad hoc, factual inquiries, the Court's decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. So, too, is the character of the governmental action. A “taking” may more readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.

(Penn. Cent. Transp. Co. v. City of New York (1978) 438 U.S. 104, 124.)

Here, Plaintiffs contend that their investment-backed expectations were frustrated by the issuance of the moratorium. They argue that once the City ordered them to stop all work in March and April of 2015, they incurred $54,000 of lost rental income for the one year construction was stopped, and $240,000 in lost income over the last four years, since construction is no longer economically feasible. (Opposition at p. 20; LeMons Decl. ¶¶ 22–23.) Plaintiffs argue that they had purchased the property at issue with the expectation of restoring it and living in it with his family, an expectation that was “wiped out” when Defendants halted all work on the project (Opposition at p. 21.) Plaintiffs contend it is now impossible to complete construction, and it is doubtful that the project will be completed. (Opposition at pp. 21–22; LeMons Decl. ¶¶ 22–24.)

But Defendants correctly counter that Plaintiffs could have no reasonable investment-backed expectation in illegally developing their property. (Motion at pp. 23–25.) The moratorium was not imposed as a unilateral regulatory measure against the property of Plaintiffs and their neighbors, but was prompted by Plaintiffs’ unpermitted demolition work. There is no reasonable expectation that a property owner will be permitted to violate applicable building codes without consequence. And while Plaintiffs contend that it was the moratorium, not their demolition, that was illegal (Opposition at pp. 22), this argument contradicts both the prior rulings of this court and the analytical rules applicable to takings generally. (See Lingle, supra, 544 U.S. at p. 543.)

For much the same reason, the character of the disputed action also militates against the conclusion that the moratorium here constituted a taking. The moratorium was a punitive measure designed to redress Plaintiffs’ violation of applicable building codes and unpermitted demolition of their property. The very nature of such an action presupposes that the affected individual, and not the wider community, should bear the burden. (See Pacific Bell, supra, 81 Cal.App.4th at p. 602.) Both the economic expectations of the affected parties and the character of the government action thus establish the moratorium as not a taking.

Accordingly, Defendants’ motion for summary judgment is GRANTED.

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases represented by Lawyer SEWELL CHARLES DAVID