This case was last updated from Los Angeles County Superior Courts on 12/02/2020 at 14:44:27 (UTC).

710 AND 712 ARDMORE, LLC VS MARK ROTH & DOES 1-10, INCLUSIVE

Case Summary

On 01/19/2018 710 AND 712 ARDMORE, LLC filed a Contract - Business lawsuit against MARK ROTH DOES 1-10, INCLUSIVE. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judges overseeing this case are ROBERT B. BROADBELT, STUART M. RICE and DEIRDRE HILL. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2628

  • Filing Date:

    01/19/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Business

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Torrance Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ROBERT B. BROADBELT

STUART M. RICE

DEIRDRE HILL

 

Party Details

Plaintiffs, Respondents and Cross Defendants

710 AND 712 ARDMORE LLC A CALIFORNIA...

SPIERER WOODWARD CORBALIS & GOLDBERG

CITY OF HERMOSA BEACH A CALIFORNIA

TRAN KIHN KYAB

KIHN LUAN TRAN AS TRUSTEE OF THE TRAN

ALDA SHELTON

TRAN TRUSTEES OF THE TRAN FAMILY TRUST KIHN LUAN

TRAN TRUSTEES OF THE TRAN FAMILY TRUST VAN HONG

NERNBERG PATTI

710 AND 712 ARDMORE A CALIFORNIA LIMITED LIABILITY COMPANY

Defendants, Cross Plaintiffs and Appellants

ROTH MARK

ROTH MARK AN INDIVIDUAL

DOES 1 THROUGH 10 INCLUSIVE

Other

PIERRO H. BABAIAN

Attorney/Law Firm Details

Plaintiff, Respondent and Cross Defendant Attorneys

GOLDBERG STEPHEN B.

GOLDBERG STEPHEN B

SLAUGHTER WILLIAM MICHAEL

KETTLES GREGG W.

KETTLES GREGG WILLIAM

BLOCK SANDRA LYNN

VOLCY JENNIFER

Defendant, Respondent, Cross Plaintiff and Appellant Attorneys

SHELTON ALDA

THE LAW OFFICE OF ALDA SHELTON

BABAIAN PIERRO H.

SAFARIAN AROUTUN HARRY

GOLDBERG STEPHEN B

SHELTON ALDA JEAN

KETTLES GREGG W.

 

Court Documents

Judgment - JUDGMENT PROPOSED JUDGMENT OF DISMISSAL AFTER SUSTAINING DEMURRER TO FIRST AMENDED CROSS-PETITION AND CROSS-COMPLAINT WITHOUT LEAVE TO AMEND

11/16/2020: Judgment - JUDGMENT PROPOSED JUDGMENT OF DISMISSAL AFTER SUSTAINING DEMURRER TO FIRST AMENDED CROSS-PETITION AND CROSS-COMPLAINT WITHOUT LEAVE TO AMEND

Answer

10/29/2020: Answer

Order - Dismissal

10/20/2020: Order - Dismissal

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON DEMURRER - WITHOUT MOT...)

10/7/2020: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON DEMURRER - WITHOUT MOT...)

Reply - REPLY TO DEMURRER TO FIRST AMENDED CROSS-COMPLAINT

9/8/2020: Reply - REPLY TO DEMURRER TO FIRST AMENDED CROSS-COMPLAINT

Reply - CROSS- DEFENDANTS 710 AND 712 ARDMORE, LLC AND PATTI NERNBERG'S REPLY TO OPPOSITION FILED BY CROSS-COMPLAINANT MARK ROTH

9/8/2020: Reply - CROSS- DEFENDANTS 710 AND 712 ARDMORE, LLC AND PATTI NERNBERG'S REPLY TO OPPOSITION FILED BY CROSS-COMPLAINANT MARK ROTH

Notice - NOTICE OF TAKING DEMURRER TO CROSS-COMPLAINT OFF CALENDAR

7/20/2020: Notice - NOTICE OF TAKING DEMURRER TO CROSS-COMPLAINT OFF CALENDAR

Minute Order - MINUTE ORDER (EX-PARTE PROCEEDINGS FOR A PROTECTIVE ORDER OR, ALTERNATIVELY...)

5/27/2020: Minute Order - MINUTE ORDER (EX-PARTE PROCEEDINGS FOR A PROTECTIVE ORDER OR, ALTERNATIVELY...)

Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

12/5/2019: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

Motion to Be Relieved as Counsel

12/5/2019: Motion to Be Relieved as Counsel

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: APPEAL; CASE MANAGEMENT CONFERENCE)

6/17/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: APPEAL; CASE MANAGEMENT CONFERENCE)

Legacy Document - LEGACY DOCUMENT TYPE: Notice of Motion

5/17/2018: Legacy Document - LEGACY DOCUMENT TYPE: Notice of Motion

Case Management Statement

5/30/2018: Case Management Statement

Legacy Document - LEGACY DOCUMENT TYPE: Opposition

6/5/2018: Legacy Document - LEGACY DOCUMENT TYPE: Opposition

Legacy Document - LEGACY DOCUMENT TYPE: Declaration

6/5/2018: Legacy Document - LEGACY DOCUMENT TYPE: Declaration

Cross-Complaint

9/6/2018: Cross-Complaint

Case Management Statement -

9/6/2018: Case Management Statement -

148 More Documents Available

 

Docket Entries

  • 10/06/2021
  • Hearing10/06/2021 at 10:00 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Jury Trial

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  • 09/29/2021
  • Hearing09/29/2021 at 10:00 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Final Status Conference

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  • 02/25/2021
  • Hearing02/25/2021 at 08:30 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Post-Mediation Status Conference

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  • 11/17/2020
  • Docketat 08:30 AM in Department M, Deirdre Hill, Presiding; Hearing on Motion for Sanctions - Not Held - Continued - Court Congestion

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  • 11/16/2020
  • DocketJudgment (Proposed Judgment of Dismissal After Sustaining Demurrer to First Amended Cross-Petition and Cross-Complaint without Leave to Amend); Filed by CITY OF HERMOSA BEACH, a California (Cross-Defendant)

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  • 11/12/2020
  • DocketOrder - Dismissal; Filed by Clerk

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  • 10/29/2020
  • DocketAnswer; Filed by 710 And 712 Ardmore, a California limited liability company (Cross-Defendant); Patti Nernberg (Cross-Defendant)

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  • 10/22/2020
  • DocketNotice of Ruling; Filed by 710 AND 712 ARDMORE, LLC, A CALIFORNIA... (Plaintiff)

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  • 10/22/2020
  • DocketNotice (Notice of Entry of Dismissal Order); Filed by CITY OF HERMOSA BEACH, a California (Cross-Defendant)

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  • 10/20/2020
  • Docketat 10:00 AM in Department M, Deirdre Hill, Presiding; Hearing on Demurrer - without Motion to Strike (of City of Hermosa Beach) - Held - Motion Granted

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232 More Docket Entries
  • 05/17/2018
  • DocketNotice of Motion; Filed by MARK ROTH (Defendant)

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  • 05/17/2018
  • DocketMiscellaneous-Other; Filed by MARK ROTH (Defendant)

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  • 05/17/2018
  • DocketOther - (REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO STRIKE (ANTI-SLAPP MOTION)); Filed by Clerk

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  • 05/17/2018
  • DocketAssociation of Attorney; Filed by MARK ROTH (Defendant)

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  • 05/01/2018
  • DocketNotice of Motion; Filed by MARK ROTH (Defendant)

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  • 05/01/2018
  • DocketNotice of Hearing on Demurrer; Filed by MARK ROTH (Defendant)

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  • 04/02/2018
  • DocketFirst Amended Complaint; Filed by 710 AND 712 ARDMORE, LLC, A CALIFORNIA... (Plaintiff)

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  • 01/19/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 01/19/2018
  • DocketSummons; Filed by 710 AND 712 ARDMORE, LLC, A CALIFORNIA... (Plaintiff)

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  • 01/19/2018
  • DocketComplaint; Filed by 710 AND 712 ARDMORE, LLC, A CALIFORNIA... (Plaintiff)

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Tentative Rulings

Case Number: YC072628    Hearing Date: October 20, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

710 AND 712 ARDMORE,

Plaintiff,

Case No.:

YC072628

vs.

[Tentative] RULING

MARK ROTH,

Defendant.

Hearing Date: October 20, 2020

Moving Parties: Cross-defendant City of Hermosa Beach

Responding Party: Cross-complainant Mark Roth

Demurrer to First Amended Cross-Complaint

The court considered the moving, opposition, and reply papers.

RULING

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the 1st and 2nd causes of action in the FACC.

BACKGROUND

On June 23, 2020, Mark Roth filed a First Amended Cross-Complaint against Kihn Luan Tran and Van Hong Tran as Trustees of the Tran Family Trust, 710 and 712 Ardmore, LLC, City of Hermosa Beach, and Patti Nernberg for (1) writ of mandate, (2) public nuisance, and (3) damages for removal of survey markers.

LEGAL AUTHORITY

When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. “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.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

DISCUSSION

Defendant City of Hermosa Beach demurs to the 1st cause of action for writ of mandate and 2nd cause of action for public nuisance on the ground that they fail to state sufficient facts to constitute a cause of action.

In the FACC, cross-complainant Roth alleges that he owns the residential property at 604 8th Street, Hermosa Beach. FACC, ¶4. In October 2014, next to Roth’s property, now designated as 710-712 Ardmore, was a duplex, owned by cross-defendant Patti Nernberg. Nernberg wanted to build a two-unit condo on the property. The property was zoned R-2. A condo was an allowed use, but a conditional-use permit was required in order to obtain a building permit. A Resolution of the Planning Commission of the City of Hermosa Beach and a public hearing were required for Nernberg to obtain a grant approving the conditional use. Id., ¶5. Nernberg, as permittee, filed an application for approval of Conditional-Use Permit No. 15-10 to obtain a grant to build a two-unit condo project on her property. On October 20, 2015, Nernberg’s application came on for hearing in front of the HB Planning Commission, with public notice required and public comment permitted. After the public hearing, the Planning Commission granted Nernberg’s application. Id., ¶6. The Resolution set forth certain Conditions of Approval, including that “[t]he development and continued use of the property shall be in conformance with submitted plans received . . . .”

Roth further alleges that certain structures next to the property line between his lot and 710-712 Ardmore, which structures were appurtenant to the unit at 712 Ardmore and were constructed at the end of 2017, did not comply with Conditional-Use Permit 15-10 or the HB Municipal Code, Title 17 (Zoning Ordinance). The City refused to exercise its ministerial duty and order the unapproved structures removed. Id., ¶16. The finished grade at the landing in front of the second-floor door does not comply with and violates the Conditional-Use Permit. The actual grade (i.e., level of dirt) is approximately 8’5.5” too low, for it would take 8’5.5” of dirt to reach the landing in front of the door. Id., ¶17. Instead of hauling in and compacting the required dirt, the builders began to build a massive unapproved stair structure, containing heavy wood posts and beams. The stair structure supported and contained numerous steps to a landing in front of a door on the second floor. The foundation of the stair structure was on grade; the landing and almost all of the steps were not. In violation of the Conditional-Use Permit, the unapproved stair structure had a foundation dug into the grade at the first-floor ground level. Id., ¶20. The steps also leading up the landing from the sidewalk were not on grade. The steps were supported by the stair structure, not by dirt on grade as required in the approved plan. Id., ¶22. The failure to provide 8’5.5” of dirt in front of the second-floor door, going back to the end of the building, to comply with the Proposed Grade detail approved in the Conditional-Use Permit violates the permit. The stairs’ intrusion into the rear-yard setback and the building of the stair structure with a foam-filled room are also violations of the Conditional-Use Permit. Id., ¶24.

Roth further alleges that the stair structure violates the zoning ordinance, the violation of which was prohibited in the Conditional-Use Permit. The structure is approximately 29’ in length; it shares at least 4’ of common wall with the main building; it intrudes into the required rear yard; and it is impermissibly too close to Roth’s property. Id., ¶26. When the unapproved stair structure is counted, the condo project exceeds the maximum 65% lot coverage permitted. Id., ¶32. The rear-yard perimeter wall was not the 6’ wall approved in the Conditional-Use Permit. Id., 4¶0. In mid-and-late 2017, Roth complained to the City’s building department that the stairs and wall violated the zoning ordinance and that the project encroached onto the required rear-yard setback. Id., ¶43. The City compelled the submission of revised plans, which the City approved on November 7, 2017. The revised plans were false plans, which misrepresented the grade, stair structure, guard rail, and wall as-built, and the foam-filled room beneath the stair structure. Id., ¶¶45, 46. The City never required compliance with the revised plans and the grade levels it approved. Id., ¶46. Roth complained to the City Building department about the issues. The enforcement inspector sent an email to Roth stating, “City planners have detected inaccuracies in the grade calculations and have required revisions and changes to bring the structure into compliance.” However, the City did nothing after that email and the stair structure remained unchanged. Id., ¶49. 712 Ardmore has violated the zoning ordinance in many respects. Id., ¶51.

1st cause of action for writ of mandate

“A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.” CCP §1085(a).

“The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested.” CCP §1086.

A traditional writ of mandate may be brought under CCP §1085 to challenge administrative actions which do meet the statutory criteria for review by way of administrative mandate under CCP §1094.5. Cal. Civil Writ Practice (Cont.Ed.Bar 4th ed. 2017) § 2.32. “In traditional mandamus actions, the agency's action must be upheld upon review unless it constitutes an abuse of discretion. ‘When reviewing the exercise of discretion, “[t]he scope of review is limited, out of deference to the agency’s authority and presumed expertise: ‘The court may not reweigh the evidence or substitute its judgment for that of the agency.’” ‘In general . . . the inquiry is limited to whether the decision was arbitrary, capricious, or entirely lacking in evidentiary support. . . .’ When making that inquiry, the court must ensure that an agency has adequately considered all relevant factors, and has demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute.” O.W.L. Foundation v. City of Rohnert Park (2008) 168 Cal. App. 4th 568, 585-86 (citations omitted) (internal quotations omitted).

Under this cause of action, Roth alleges that compelling removal of the foregoing violations of the Conditional-Use Permit and the zoning ordinance was a ministerial act of the City. It had no discretion to allow the rear-yard violations of the project as-built in late November 2017 or early December 2017, to continue. The requirements at issue imposed by the Conditional-Use Permit were the minimal requirements set forth in the Code. The City has not ordered the violating elements removed. It issued a certificate of occupancy despite the non-compliance in January 2018. Id., ¶53.

Roth seeks a writ of mandate to compel the City to perform its ministerial duty to cause the Ardmore structure to comply with the conditions approved in the grant of the Conditional-Use Permit and the zoning ordinance by ordering the removal of the stair structure and wall and enforcing its order. Id., ¶56.

The City argues that this cause of action fails because the City cannot be enjoined to enforce the law, citing to Riggs v. City of Oxnard (1984) 154 Cal. App. 3d 526 (“A writ of mandate will not issue to compel that discretion be exercised in a particular way. Further, it is not the function of the court to challenge the municipality’s policy and wisdom. ‘The function of the courts is to determine whether or not the municipal bodies acted within the limits of their power and discretion.’”) (Citations omitted.)

In opposition, Roth argues that he is beneficially interested and that the stair structure was not permitted and thus he is deprived of the required minimum distance from his neighbors. He contends that the city had a ministerial duty to make a “mere operational decision” and withhold approval of the stairs that “so blatantly and obviously conflicted with the submitted plans.” Roth further argues that the court can correct abuses of discretion.

The court finds that the allegations are insufficient to meet the elements for pleading a writ of mandate under CCP §1085 and is moot because the project is complete and a Certificate of Occupancy has issued. “A case is moot when any ruling by this court can have no practical impact or provide the parties effectual relief.” Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal. App. 4th 880, 888. Moreover, “[i]t has long been the rule in this state and in other jurisdictions that if a property owner has performed substantial work and incurred substantial liabilities in good faith reliance upon a permit issued by the government, he acquires a vested right to complete construction in accordance with the terms of the permit.” Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 791. As alleged in para. 56, Roth seeks a writ of mandate to “compel the City to perform its ministerial duty to cause the Ardmore structure to comply with the conditions approved in the grant of the Conditional-Use Permit and the zoning ordinance, by ordering the removal of the stair structure and wall and enforcing its order.” In the prayer, Roth requests “a writ of mandate and an injunction compelling city to order the owner of 712 Ardmore, presumably the Trustees of The Tran Family Trust, to remove the stair structure and wall and to enforce its order.” Further, as argued by the City, the City may not be enjoined or otherwise ordered to use one enforcement option in particular over others. Further, plaintiff has not alleged facts to show that the City’s purported decision to issue a Certificate of Occupancy or any other decision was arbitrary, capricious, or entirely lacking in evidentiary support.

The City also argues that the cause of action is barred by the statute of limitations in Gov. Code §54960.1 because the City approved the wall and stairway structure in 2015 and Roth did not challenge the validity of the development plan within 90 days. Further, the City contends, Roth has no beneficial interest whether the void under the stairs is filled with soil or foam or that the top of the wall is open in parts with a safety railing because the overall wall height has not increased from the original plans.

The court finds that the cause of action is not barred on its face clearly and affirmatively. The FACC alleges that defendants failed to comply with the conditional-use permit in 2017.

The City also argues that Roth failed to exhaust his administrative remedies because the conditional use permit was issued in 2015 and that Roth did not appeal the conditional use permit. The court notes that Roth is not contesting the conditional use permit. Rather, he alleges that he is contesting the issuance of the certificate of occupancy and failure to comply with the conditional use permit. Further, he alleges that he has exhausted his administrative remedies.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as cross-complainant has not sufficiently alleged a claim for writ of mandate.

2nd cause of action for public nuisance

The City argues that this cause of action fails because a challenge to the sufficiency of a certificate of occupancy and the underlying development plan may only be brought in mandate. See Bunnett v. Regents of University of California (1995) 35 Cal. App. 4th 843, 844-45; Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal. App. 4th 149, 154-55 (“the proper and sole remedy is administrative mandamus” to challenge the application of a regulation). Further, the City cannot be enjoined to enforce the law. Also, the allegations do not show that any action or condition complained of unreasonably interfered with a community interest. Moreover, the City is immune from liability under Gov. Code §§818.2, 818.4, 818.6, and 821.2.

The court finds that the allegations are insufficient as argued by the City.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Moving party is ordered to give notice of the ruling.

*********************************************

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

710 AND 712 ARDMORE,

Plaintiff,

Case No.:

YC072628

vs.

[Tentative] RULING

MARK ROTH,

Defendant.

Hearing Date: October 20, 2020

Moving Parties: Cross-defendants 710 and 712 Ardmore, LLC and Patti Nernberg

Responding Party: Cross-complainant Mark Roth

Demurrer to First Amended Cross-Complaint

The court considered the moving, opposition, and reply papers.

RULING

The demurrer is OVERRULED as to the 2nd and 3rd causes of action in the FACC.

BACKGROUND

On January 19, 2018, 710 and 712 Ardmore, LLC filed a complaint against Mark Roth for (1) intentional interference with prospective economic relations, (2) preliminary and permanent injunction and damages, and (3) declaratory relief.

On April 2, 2018, plaintiff filed a FAC, alleging that it is the owner and developer of real property located at 710-712 Ardmore Avenue, Hermosa Beach. The project is a completed, two-unit townhouse development. Throughout construction, plaintiff has complied with all building code requirements mandated by the HB Municipal Code regarding plan and construction approval. The project has been strictly to code under the supervision of the City of HB, with all phases approved during construction by officials of the City of HB Building and/or Planning Department. Defendant is the owner of the property located at 604 8th Street, HB, which is located just north of and next door to the project. Defendant has opposed the project and throughout the construction process has made numerous complaints to the City of HB. Defendant asserts that the completed project violates multiple building code requirements, including the construction of an illegal stairway on the north side of the project, next to defendant’s property. One unit is listed for sale and defendant, in an effort to prevent the sale, placed a sign, clearly visible, in the proximity of the stairway. The sign was designed to be viewed by potential buyers and explicitly threatened to sue any buyer. Plaintiff demanded that defendant immediately remove the sign from the area. In February 2018, after being served with the complaint, defendant replaced the sign with a second sign that states that he had been sued and “If the owner loses the case, the stairs will have to be torn down and the door sealed off. Have you been informed of the lawsuit and any consequences to you including becoming part of this lawsuit?”

On September 6, 2018, Roth filed a Cross-Complaint.

On September 11, 2018, the court denied Roth’s special motion to strike, overruled demurrer to FAC, and denied motion to strike.

On January 8, 2020, the appellate court issued a remittitur, affirming in part, reversing in part, and remanding with directions, with respect to the FAC. The appellate court affirmed the order denying Roth’s special motion to strike as to the 3rd cause of action for nuisance; reversed order denying Roth’s special motion to strike as to 1st and 2nd causes of action; and remanded the matter to the trial court with instructions to strike the 1st and 2nd causes of action from the FAC.

On June 23, 2020, Roth filed a First Amended Cross-Complaint against Kihn Luan Tran and Van Hong Tran as Trustees of the Tran Family Trust, 710 and 712 Ardmore, LLC, City of Hermosa Beach, and Patti Nernberg for (1) writ of mandate, (2) public nuisance, and (3) damages for removal of survey markers.

LEGAL AUTHORITY

When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. “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.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

DISCUSSION

Defendants 710 and 712 Ardmore, LLC and Patti Nernberg demur to the 2nd cause of action for public nuisance and 3rd cause of action for conversion of survey markers against Nernberg individually on the ground that they fail to state sufficient facts to constitute a cause of action against her. Further, they demur, arguing that the allegations do not support alter ego.

In the FACC, cross-complainant Roth alleges that he owns the residential property at 604 8th Street, Hermosa Beach. FACC, ¶4. In October 2014, next to Roth’s property, now designated as 710-712 Ardmore, was a duplex, owned by cross-defendant Patti Nernberg. Nernberg wanted to build a two-unit condo on the property. The property was zoned R-2. A condo was an allowed use, but a conditional-use permit was required in order to obtain a building permit. A Resolution of the Planning Commission of the City of Hermosa Beach and a public hearing were required for Nernberg to obtain a grant approving the conditional use. Id., ¶5. Nernberg, as permittee, filed an application for approval of Conditional-Use Permit No. 15-10 to obtain a grant to build a two-unit condo project on her property. On October 20, 2015, Nernberg’s application came on for hearing in front of the HB Planning Commission, with public notice required and public comment permitted. After the public hearing, the Planning Commission granted Nernberg’s application. Id., ¶6. The Resolution set forth certain Conditions of Approval, including that “[t]he development and continued use of the property shall be in conformance with submitted plans received . . . .”

Roth further alleges that certain structures next to the property line between his lot and 710-712 Ardmore, which structures were appurtenant to the unit at 712 Ardmore and were constructed at the end of 2017, did not comply with Conditional-Use Permit 15-10 or the HB Municipal Code, Title 17 (Zoning Ordinance). The City refused to exercise its ministerial duty and order the unapproved structures removed. Id., ¶16. The finished grade at the landing in front of the second-floor door does not comply with and violates the Conditional-Use Permit. The actual grade (i.e., level of dirt) is approximately 8’5.5” too low, for it would take 8’5.5” of dirt to reach the landing in front of the door. Id., ¶17. Instead of hauling in and compacting the required dirt, the builders began to build a massive unapproved stair structure, containing heavy wood posts and beams. The stair structure supported and contained numerous steps to a landing in front of a door on the second floor. The foundation of the stair structure was on grade; the landing and almost all of the steps were not. In violation of the Conditional-Use Permit, the unapproved stair structure had a foundation dug into the grade at the first-floor ground level. Id., ¶20. The steps also leading up the landing from the sidewalk were not on grade. The steps were supported by the stair structure, not by dirt on grade as required in the approved plan. Id., ¶22. The failure to provide 8’5.5” of dirt in front of the second-floor door, going back to the end of the building, to comply with the Proposed Grade detail approved in the Conditional-Use Permit violates the permit. The stairs’ intrusion into the rear-yard setback and the building of the stair structure with a foam-filled room are also violations of the Conditional-Use Permit. Id., ¶24.

Roth further alleges that the stair structure violates the zoning ordinance, the violation of which was prohibited in the Conditional-Use Permit. The structure is approximately 29’ in length; it shares at least 4’ of common wall with the main building; it intrudes into the required rear yard; and it is impermissibly too close to Roth’s property. Id., ¶26. Roth further alleges that cross-defendants violated the 65% maximum lot-coverage restriction.

Nernberg argues that the naming of her as an individual cross-defendant is improper because at all times she was acting on behalf of cross-defendant 710 and 712 Ardmore, LLC. She argues that the allegations under the 2nd and 3rd causes of action are insufficient to support alter ego liability.

The purpose of alter ego liability is to disregard the fictional facade of the corporation and hold those individuals doing business under the corporate name liable for the corporation debts in order to prevent an injustice. See, e.g., Sonora Diamond Corp. v. Superior Court (2000) 83 Cal. App. 4th 523, 538. The doctrine of alter ego comes into play when a plaintiff claims a defendant “is using the corporate form unjustly and in derogation of the plaintiff’s interests.” Mesler v. Bragg Management Co. (1985) 39 Cal. 3d 290, 300.

The alter ego doctrine “is an extreme remedy, sparingly used.” Sonora Diamond, 83 Cal. App. 4th at 538-539. The plaintiff has the burden of overcoming the presumption the corporate entity has a separate existence. Mid-Century Ins. Co. v. Gardner (1992) 9 Cal. App. 4th 1205, 1212. “In California, two conditions must be met before the alter ego doctrine will be invoked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone.” Sonora Diamond, 83 Cal. App. 4th at 538. Among the factors relevant to determining an alter ego relationship are “the commingling of funds and other assets, the failure to separate the assets of separate entities, the treatment of the corporation’s assets as those of an individual or other corporation, holding out that the individual or other corporation is personally liable for the first corporation’s debts, the failure to maintain separate records or the commingling of the records of the entities, identical equitable ownership in the two entities, the equitable owners’ domination and control of the entities, the use of the same business location, an identity of employees or attorneys in separate entities, the use of the corporation as a mere shell or instrumentality for the conduct of the affairs of another entity, the failure to maintain arm’s length transactions between entities and the diversion of assets.” United Community Church v. Garcin (1991) 231 Cal. App. 3d 327, 343.

The FACC alleges that Nernberg is the alter ego of 710 and 712 Ardmore, LLC because the LLC was undercapitalized when formed and could not and cannot respond in damages commensurate with the financial risks of the project that it was undertaking; Nernberg is the only member of the LLC and has not complied with any formalities required of an LLC, and treats the LLC as her own; when the LLC was formed, its only assets were a construction loan with a short payout period, guaranteed by Nernberg, with no cushion for damages caused by the construction; when 712 Ardmore was sold, Nernberg treated the sales proceeds as her own, and she lives rent-free in 710 Ardmore, even though it is owned by the LLC; her transfer of title to the property to the LLC in 2016 was done with no payment to her for her interest, but was done to shield herself from liability, with the understanding that she personally would control the construction and the ultimate proceeds. FACC, ¶71. Nernberg transferred title to 710-712 Ardmore to the LLC some time in 2016. Id., ¶75.

Cross-defendant argues that the FACC does not allege any facts supporting a unity of interest and ownership and an unjust result if 710 and 712 Ardmore, LLC is treated as the sole actor.

The court finds that the allegations of alter ego are sufficient.

The 3rd cause of action does not rely entirely upon alter ego allegations as a basis for liability against Nernberg. The 3rd cause of action alleges that Roth paid Denn Engineering to survey the property line that his property has in common with the Ardmore property. Roth was entitled to possession of and owned the survey markers placed. Some time in 2017 defendants and their agents and employees removed the markers during construction of the stair structure. Despite demand, they have refused to replace the survey markers. FACC, ¶76. Roth has been damaged in that he will have to pay for another survey. Id., ¶77.

The demurer is OVERRULED.

Moving party is ordered to give notice of the ruling.

**********************************************

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

710 AND 712 ARDMORE,

Plaintiff,

Case No.:

YC072628

vs.

[Tentative] RULING

MARK ROTH,

Defendant.

Hearing Date: October 20, 2020

Moving Parties: Cross-defendants Kihn Luan Tran and Van Hong Tran as trustees of the Tran Family Trust

Responding Party: Cross-complainant Mark Roth

Demurrer to First Amended Cross-Complaint

The court considered the moving, opposition, and reply papers.

RULING

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the 2nd cause of action for public nuisance in the FACC.

BACKGROUND

On January 19, 2018, 710 and 712 Ardmore, LLC filed a complaint against Mark Roth for (1) intentional interference with prospective economic relations, (2) preliminary and permanent injunction and damages, and (3) declaratory relief.

On April 2, 2018, plaintiff filed a FAC, alleging that it is the owner and developer of real property located at 710-712 Ardmore Avenue, Hermosa Beach. The project is a recently completed, two-unit townhouse development. Throughout construction, plaintiff has complied with all building code requirements mandated by the HB Municipal Code regarding plan and construction approval. The project has been strictly to code under the supervision of the City of HB, with all phases approved during construction by officials of the City of HB Building and/or Planning Department. Defendant is the owner of the property located at 604 8th Street, HB, which is located just north of and next door to the project. Defendant has opposed the project and throughout the construction process has made numerous complaints to the City of HB. Defendant asserts that the completed project violates multiple building code requirements, including the construction of an illegal stairway on the north side of the project, next to defendant’s property. One unit is listed for sale and defendant, in an effort to prevent the sale, placed a sign, clearly visible, in the proximity of the stairway. The sign was designed to be viewed by potential buyers and explicitly threatened to sue any buyer. Plaintiff demanded that defendant immediately remove the sign from the area. In February 2018, after being served with the complaint, defendant replaced the sign with a second sign that states that he had been sued and “If the owner loses the case, the stairs will have to be torn down and the door sealed off. Have you been informed of the lawsuit and any consequences to you including becoming part of this lawsuit?”

On September 6, 2018, Roth filed a Cross-Complaint.

On September 11, 2018, the court denied Roth’s special motion to strike, overruled demurrer to FAC, and denied motion to strike.

On January 8, 2020, the appellate court issued a remittitur, affirming in part, reversing in part, and remanding with directions, with respect to the FAC. The appellate court affirmed the order denying Roth’s special motion to strike as to the 3rd cause of action for nuisance; reversed order denying Roth’s special motion to strike as to 1st and 2nd causes of action; and remanded the matter to the trial court with instructions to strike the 1st and 2nd causes of action from the FAC.

On June 23, 2020, Roth filed a First Amended Cross-Complaint against Kihn Luan Tran and Van Hong Tran as Trustees of the Tran Family Trust, 710 and 712 Ardmore, LLC, City of Hermosa Beach, and Patti Nernberg for (1) writ of mandate, (2) public nuisance, and (3) damages for removal of survey markers.

LEGAL AUTHORITY

When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. “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.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

DISCUSSION

Defendants Kihn Luan Tran and Van Hong Tran, as trustees of the Tran Family Trust (“Tran”), demur to the 2nd cause of action for public nuisance on the ground that it fails to state sufficient facts to constitute a cause of action.

In the FACC, cross-complainant Roth alleges that he owns the residential property at 604 8th Street, Hermosa Beach. FACC, ¶4. In October 2014, next to Roth’s property, now designated as 710-712 Ardmore, was a duplex, owned by cross-defendant Patti Nernberg. Nernberg wanted to build a two-unit condo on the property. The property was zoned R-2. A condo was an allowed use, but a conditional-use permit was required in order to obtain a building permit. A Resolution of the Planning Commission of the City of Hermosa Beach and a public hearing were required for Nernberg to obtain a grant approving the conditional use. Id., ¶5. Nernberg, as permittee, filed an application for approval of Conditional-Use Permit No. 15-10 to obtain a grant to build a two-unit condo project on her property. On October 20, 2015, Nernberg’s application came on for hearing in front of the HB Planning Commission, with public notice required and public comment permitted. After the public hearing, the Planning Commission granted Nernberg’s application. Id., ¶6. The Resolution set forth certain Conditions of Approval, including that “[t]he development and continued use of the property shall be in conformance with submitted plans received . . . .”

Roth further alleges that certain structures next to the property line between his lot and 710-712 Ardmore, which structures were appurtenant to the unit at 712 Ardmore and were constructed at the end of 2017, did not comply with Conditional-Use Permit 15-10 or the HB Municipal Code, Title 17 (Zoning Ordinance). The City refused to exercise its ministerial duty and order the unapproved structures removed. Id., ¶16. The finished grade at the landing in front of the second-floor door does not comply with and violates the Conditional-Use Permit. The actual grade (i.e., level of dirt) is approximately 8’5.5” too low, for it would take 8’5.5” of dirt to reach the landing in front of the door. Id., ¶17. Instead of hauling in and compacting the required dirt, the builders began to build a massive unapproved stair structure, containing heavy wood posts and beams. The stair structure supported and contained numerous steps to a landing in front of a door on the second floor. The foundation of the stair structure was on grade; the landing and almost all of the steps were not. In violation of the Conditional-Use Permit, the unapproved stair structure had a foundation dug into the grade at the first-floor ground level. Id., ¶20. The steps also leading up the landing from the sidewalk were not on grade. The steps were supported by the stair structure, not by dirt on grade as required in the approved plan. Id., ¶22. The failure to provide 8’5.5” of dirt in front of the second-floor door, going back to the end of the building, to comply with the Proposed Grade detail approved in the Conditional-Use Permit violates the permit. The stairs’ intrusion into the rear-yard setback and the building of the stair structure with a foam-filled room are also violations of the Conditional-Use Permit. Id., ¶24.

Roth further alleges that the stair structure violates the zoning ordinance, the violation of which was prohibited in the Conditional-Use Permit. The structure is approximately 29’ in length; it shares at least 4’ of common wall with the main building; it intrudes into the required rear yard; and it is impermissibly too close to Roth’s property. Id., ¶26. Roth further alleges that cross-defendants violated the 65% maximum lot-coverage restriction.

2nd cause of action for public nuisance

Civil Code §3479 defines a “nuisance” as “[a]nything which is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” Civil Code §3480. “Of course, not every interference with collective social interest constitutes a public nuisance. To qualify, and thus be enjoinable, the interference must be both substantial and unreasonable.” People Ex Rel. Gallo v. Acuna (1997) 14 Cal. 4th 1090, 1105.

The essential factual elements of a public nuisance claim are that (1) defendant created a condition or permitted a condition to exist that was harmful to health, was indecent or offensive to the senses, or was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property; (2) that the condition affected a substantial number of people at the same time; (3) that an ordinary person would be reasonably annoyed or disturbed by the condition; (4) that the seriousness of the harm outweighs the social utility of defendant’s conduct; (5) that plaintiff did not consent to defendant’s conduct; and (6) that defendant’s conduct was a substantial factor in causing plaintiff’s harm. CACI 2020.

“[T]o be considered a nuisance per se the object, substance, activity or circumstance at issue must be expressly declared to be a nuisance by its very existence by some applicable law.” Beck Development v. Southern Pacific Transportation Co. (1996) 44 Cal. App. 4th 1160, 1207 (“To support a claim of nuisance per se the plaintiff must point to a statutory provision that declares the alleged contamination to be a nuisance regardless of the action or inaction of any public agency.”).

Cross-complainant Roth alleges that cross-defendants Tran bought the condo at 712 Ardmore on June 6, 2018 and are its present owners. FACC, ¶59. The aforementioned violations of the Conditional-Use Permit and the zoning ordinance constitute a public nuisance. The Conditional-Use Permit was granted after a required public hearing in which the public at large had a community interest. It has a community interest in the enforcement of the public grant. Id., ¶62. Cross-defendants, in acting or failing to act, or in authorizing and approving the construction that violated the Conditional-Use Permit, created, assisted in, or continued a condition, that is an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property. They have created a condition which violates the minimum requirements for the public health, safety, comfort, convenience, and general welfare of the City, which requirements create a community interest when violations occur. Id., ¶65. The condition affects a substantial number of people at the same time and is a public nuisance. The condition is also a per se public nuisance under the findings of the HB Municipal Code 17.02.030, since the public health, safety, comfort, and general welfare have been violated. Id., ¶66. An ordinary person would be reasonable annoyed or disturbed by the condition, especially since the condition results from the violation of matters approved in the discretionary grant of a conditional-use permit after a public hearing, the taking of evidence, and a Staff Report. Id., ¶67. Roth has suffered a special injury to himself. The violations interfere with the comfortable use of his property. Roth’s lot is small, and the required separation of his property from the Ardmore lot does not exist. His bedroom window is 5’6” away from the high stairway which 712 Ardmore residents and guests use to get up to the 2nd floor entrance to the condo. People can make noise at all hours on the stairs. Strangers can come within inches of him when he is in his back yard. They can loom over him on the landing and look directly into his yard at him and his guests. They can hear what he says, see what he is doing, and take picture of him. There is no privacy. Id., ¶69. Nernberg and 710 and 712 Ardmore, LLC created the public nuisance and defendants Tran are continuing it. The City approved the public nuisance instead of ordering it abated, which it had a ministerial duty to do. Id., ¶70.

Cross-defendants Tran argue that Roth fails to allege that the stairwell and wall unreasonably and substantially interfere with a community interest. Tran argues that the claim is defective because there are no allegations of a public harm. As Roth alleges, the stairwell and wall are located between Roth and Tran properties. Tran argues that to use the stairwell, one must enter the Tran’s private property.

Cross-defendants also argue that Roth cannot establish public nuisance per se. Roth does not cite to any municipal code section that expressly establishes that a violation of the zoning codes at issue inherently constitute a nuisance. Even so, Tran argues, the City concluded that the project complies with the zoning laws and no violation exists.

In opposition, cross-complainant argues that he has sufficiently alleged a per se public nuisance because HB Municipal Code 17.74.020 states: “Each person, firm or corporation found guilty of a violation of [zoning ordinance] shall be deemed guilty of a separate offense for every day during any portion of which any violation of any provision of this title is committed, continued or permitted by such person, firm or corporation, and any use, occupation or building or structure maintained contrary to the provisions hereof shall constitute a public nuisance.” Cross-complainant also argues that the FACC does not allege that the City found that the structure complied with the Permit and Code. Cross-complainant also contends that the Tran Trust is under a duty to take positive action to abate a continuing nuisance.

In reply, cross-defendants reiterate that the allegations fail to show general public nuisance. Cross-defendants also argue that the claim for public nuisance per se under the HB Municipal Code also fails because Roth does not have a private right of action under the municipal codes upon which he relies. Cross-defendants cite to HBMC 1.04.050, which states, “[i]n addition to the penalties hereinabove provided, any condition caused or permitted to exist in violation of any of the provisions of the Code shall be deemed a public nuisance and may be summarily abated as such by the city, and every day such condition continues shall be regarded as a new and separate offense.” They argue that although Roth contends that he is “beneficially interested in any remedy he can obtain” under the HBMC, he provides no authority that a private citizen is entitled to remedies under the municipal code. Cross-defendants also cite to other HBMC sections that provide for administrative penalties and citations, which are remedies available only to the city.

The court finds that the allegations are insufficient to support a cause of action based on general public nuisance. The allegations do not show an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property that affects at the same time an entire community or neighborhood. The allegations do not support that the purported interference is substantial and unreasonable. Roth did not address in his opposition and appears to have abandoned this theory.

The allegations also do not support nuisance per se as he does not have a private right of action under the municipal codes upon which he relies in his opposition.

The demurrer is thus SUSTAINED WITHOUT LEAVE TO AMEND.

Moving party is ordered to give notice of the ruling.

Case Number: YC072628    Hearing Date: January 10, 2020    Dept: B

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

710 AND 712 ARDMORE, LLC,

Plaintiff,

Case No.:

YC072628

vs.

[Tentative] RULING

MARK ROTH,

Defendant.

Hearing Date: January 10, 2020

Moving Parties: Alda Shelton, attorney for cross-complainant Mark Roth

Responding Party: None

Motion to Be Relieved as Counsel

The court considered the moving papers.

RULING

The motion is GRANTED. The court orders that the attorney is relieved as counsel of record for cross-complainant Mark Roth, effective upon the filing of a proof of service of the signed “Order Granting Attorney’s Motion to Be Relieved as Counsel – Civil” (Judicial Council form MC-053) upon the client (cross-complainant).

BACKGROUND

On January 19, 2018, 710 and 712 Ardmore, LLC filed a complaint against Mark Roth for intentional interference with prospective economic relations, preliminary and permanent injunction and damages, and declaratory relief.

On April 2, 2018, plaintiff filed a FAC. On September 6, 2018, Mark Roth filed a cross complaint against Kihn Luan Tran, ind. and as trustee of the Tran Family Trust, 710 and 712 Ardmore, LLC, and City of Hermosa Beach for public nuisance, violation of zoning code, declaratory relief, writ of mandate, and conversion of survey markers.

LEGAL STANDARD

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. See Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915; People v. Prince (1968) 268 Cal. App. 2d 398.

CRC Rule 3.1362 (Motion to Be Relieved as Counsel) requires (1) notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)).

DISCUSSION

Cross-complainant Mark Roth’s attorney of record, Alda Shelton, seeks to be relieved as counsel.

Counsel states in his declaration that there are irreconcilable differences as to how to proceed on the cross-complaint.

The court finds that the attorney has served the client by mail at the client’s last known address and submitted a declaration establishing that the service requirements of California Rules of Court, Rule 3.1362, have been satisfied. The court also finds that the attorney has shown sufficient reasons why the motion to be relieved as counsel should be granted and why the attorney has brought a motion under Code of Civil Procedure § 284(2) instead of filing a consent under § 284(1).

The motion is GRANTED.

Moving counsel is ordered to give notice of this ruling.