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This case was last updated from Los Angeles County Superior Courts on 06/30/2020 at 17:12:20 (UTC).

REDONDO BEACH WATERFRONT LLC VS CITY OF REDONDO BEACH

Case Summary

On 11/09/2017 REDONDO BEACH WATERFRONT LLC filed a Contract - Other Contract lawsuit against CITY OF REDONDO BEACH. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are TERESA A. BEAUDET and JAMES C. CHALFANT. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2833

  • Filing Date:

    11/09/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

TERESA A. BEAUDET

JAMES C. CHALFANT

 

Party Details

Plaintiff and Petitioner

REDONDO BEACH WATERFRONT LLC

Defendants and Respondents

REDONDO BEACH CITY OF

DOES 1 TO 50

Not Classified By Court

TEST PARTY FOR TRUST CONVERSION

LEE LINDA

LA DEPOSITIONS INC.

Attorney/Law Firm Details

Defendant, Respondent and Plaintiff Attorneys

SHUMENER ODSON & OH LLP

SHUMENER BETTY M. ESQ.

SHUMENE ODSON & OH LLP

SPURLING JOHN DANIEL

OH HENRY HUI-SOO

JEFFER MANGELS BUTLER & MITCHELL LLP

HINKS MATTHEW DAVID

Plaintiff and Petitioner Attorneys

SHUMENER BETTY M. ESQ.

SHUMENE ODSON & OH LLP

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON MOTION TO BIFURCATE)

6/7/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO BIFURCATE)

Proof of Service (not Summons and Complaint)

5/24/2019: Proof of Service (not Summons and Complaint)

Notice - Notice of Continued Mandatory Settlement Conference

2/5/2019: Notice - Notice of Continued Mandatory Settlement Conference

Appeal - Notice of Fees Due for Clerk's Transcript on Appeal - No Fees for Appellant. Government Entity. 1 Copy, 1 Original

11/16/2018: Appeal - Notice of Fees Due for Clerk's Transcript on Appeal - No Fees for Appellant. Government Entity. 1 Copy, 1 Original

Appeal - Notice of Fees Due for Clerk's Transcript on Appeal

11/16/2018: Appeal - Notice of Fees Due for Clerk's Transcript on Appeal

Minute Order -

9/18/2018: Minute Order -

PETITIONER'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF FRANK P. ANGEL RE MOTION FOR DETERMINATION OF SUCCESSFUL PARTY UNDER C.C.P. 1021.5

8/9/2018: PETITIONER'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF FRANK P. ANGEL RE MOTION FOR DETERMINATION OF SUCCESSFUL PARTY UNDER C.C.P. 1021.5

NOTICE OF ENTRY OF ORDER DENYINCI SPECIAL MOL ION TO STRIKE SLAPP SUIT

7/24/2018: NOTICE OF ENTRY OF ORDER DENYINCI SPECIAL MOL ION TO STRIKE SLAPP SUIT

SUPPLEMENTAL DECLARATION OF AARON JONES IN SUPPORT OF REPLY RE DEFENDANT'S SPECIAL MOTION TO STRIKE SLAPP SUIT

5/23/2018: SUPPLEMENTAL DECLARATION OF AARON JONES IN SUPPORT OF REPLY RE DEFENDANT'S SPECIAL MOTION TO STRIKE SLAPP SUIT

SUPPLEMENTAL DECLARATION OF JOHN D. SPURLING IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT'S ANTI-SLAPP MOTION

5/30/2018: SUPPLEMENTAL DECLARATION OF JOHN D. SPURLING IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT'S ANTI-SLAPP MOTION

PROOF OF SERVICE

5/17/2018: PROOF OF SERVICE

SUMMONS CROSS-COMPLAINT

5/22/2018: SUMMONS CROSS-COMPLAINT

NOTICE OF CONTNUANCE OF HEARING

3/26/2018: NOTICE OF CONTNUANCE OF HEARING

NOTICE RE: CONTINUANCE OF HEARING

3/21/2018: NOTICE RE: CONTINUANCE OF HEARING

DECLARATION OF AARON JONES IN SUPPORT OF SPECIAL MOTION TO STRIKE SLAPP SUIT

3/9/2018: DECLARATION OF AARON JONES IN SUPPORT OF SPECIAL MOTION TO STRIKE SLAPP SUIT

Minute Order -

3/12/2018: Minute Order -

NOTICE OF ENTRY OF MINUTE ORDER IN FEDERAL ACTION

2/1/2018: NOTICE OF ENTRY OF MINUTE ORDER IN FEDERAL ACTION

SUMMONS -

11/9/2017: SUMMONS -

97 More Documents Available

 

Docket Entries

  • 07/31/2020
  • Hearing07/31/2020 at 15:30 PM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Status Conference

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  • 05/22/2020
  • Docketat 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Status Conference - Not Held - Advanced and Continued - by Court

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  • 05/14/2020
  • Docketat 11:00 AM in Department 50, Teresa A. Beaudet, Presiding; Court Order

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  • 05/14/2020
  • DocketCertificate of Mailing for ((Court Order) of 05/14/2020); Filed by Clerk

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  • 05/14/2020
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 01/22/2020
  • Docketat 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Status Conference - Held - Continued

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  • 01/22/2020
  • DocketMinute Order ( (Status Conference)); Filed by Clerk

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  • 01/22/2020
  • DocketCertificate of Mailing for ((Status Conference) of 01/22/2020); Filed by Clerk

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  • 01/02/2020
  • DocketNotice (of Status Conference and Order); Filed by REDONDO BEACH WATERFRONT LLC (Plaintiff)

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  • 12/26/2019
  • DocketNotice of Status Conference and Order; Filed by Clerk

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179 More Docket Entries
  • 02/22/2018
  • DocketStipulation and Order; Filed by Plaintiff/Petitioner

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  • 02/01/2018
  • DocketNotice; Filed by REDONDO BEACH WATERFRONT LLC (Plaintiff)

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  • 02/01/2018
  • DocketNOTICE OF ENTRY OF MINUTE ORDER IN FEDERAL ACTION

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  • 01/11/2018
  • DocketProof of Service (not Summons and Complaint); Filed by REDONDO BEACH WATERFRONT LLC (Plaintiff)

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  • 01/11/2018
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 11/20/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 11/20/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 11/09/2017
  • DocketComplaint; Filed by REDONDO BEACH WATERFRONT LLC (Plaintiff)

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  • 11/09/2017
  • DocketCOMPLAINT FOR: (1) DEPRIVATION OF SUBSTANTIVE DUE PROCESS RIGHTS UNDER COLOR OF STATE LAW (42 U.S.C. 1983) ;ETC

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  • 11/09/2017
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC682833    Hearing Date: May 6, 2021    Dept: 50

 

Superior Court of California

County of Los Angeles

Department 50

Redondo beach waterfront llc,

Plaintiff,

vs.

city of redondo beach.

Defendant.

Case No.:

BC682833

Hearing Date:

May 6, 2021

Hearing Time:

10:00 a.m.

[TENTATIVE] ORDER RE:

DEFENDANT CITY OF REDONDO BEACH’S MOTION FOR ATTORNEY’S FEES

Defendant City of Redondo Beach’s Motion for Attorney’s Fees is continued as set forth below.

The parties have interposed more than 30 evidentiary objections. Due to the voluminous number of objections, the hearing on the Motion will be continued to a date that will be set at the Hearing on Objections discussed below.

The Court orders the parties to meet and confer by telephone or in person in a serious and good faith effort to resolve and eliminate the objections. The only objections that should remain are those that pertain to material evidence regarding material issues. Keeping the rules of evidence in mind, the parties should be able to reduce the objections to just a few. If any material objections remain unresolved, the parties are to set them forth in a joint statement with the text, the objection, and the argument of each side in favor of their respective positions regarding the remaining material objections.

The joint statement must be filed and a separate ruling sheet must be lodged directly in Department 50 by noon on _______________. The Court will review any remaining objections with the parties at a hearing on _______________ at 2:00 p.m. (the “Hearing on Objections”). The Court continues the hearing on the Motion to ________________, 2:00 p.m., in Dept. 50.

If necessary, based upon the resolutions reached during the meet and confer process and/or at the Hearing on Objections, the parties may respectively file and serve revised briefing and evidence. The revised evidence may eliminate objectionable material; however, no new evidence or new argument is to be submitted unless it is as a result of compromises reached during the meet and confer process. In the event that revised briefing and evidence is necessary, the Court will discuss with the parties a briefing schedule for the revised briefing at the Hearing on Objections.

Defendant is ordered to give notice of this Order.

DATED: May 6, 2021

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

Case Number: BC682833    Hearing Date: March 26, 2021    Dept: 50

 

Superior Court of California

County of Los Angeles

Department 50

redondo beach waterfront, llc,

Plaintiff,

vs.

city of redondo beach, et al.,

Defendants.

Case No.:

BC 682833

Hearing Date:

March 26, 2021

Hearing Time:

2:00 p.m.

[TENTATIVE] ORDER RE:

DEFENDANT CITY OF REDONDO BEACH’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT;

DEFENDANT CITY OF REDONDO BEACH’S MOTION TO STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO CCP §§ 435 AND 436

AND RELATED CROSS-ACTION

Background

On November 9, 2017, Plaintiff Redondo Beach Waterfront, LLC (“RBW”) filed this action against the City of Redondo Beach (the “City”). The operative First Amended Complaint (“FAC”) was filed on October 13, 2020, and asserts causes of action for (1) deprivation of substantive due process rights under color of state law, (2) deprivation of procedural due process rights under color of state law, (3) breach of contract, (4) equitable estoppel, (5) declaratory judgment (ALPIF), and (6) declaratory judgment (Vesting Tentative Tract Map).

The City now demurs to the fourth cause of action on the basis that it fails to state facts sufficient to constitute a cause of action. The City also moves to strike portions of the FAC. RBW opposes both.

Request for Judicial Notice

The Court grants the City’s request for judicial notice as to Exhibits B and C. The Court denies the City’s request for judicial notice as to Exhibit A and sustains RBW’s objection to Exhibit A.

Demurrer

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ((Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” ((C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.  ((Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” ((Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) 

The City contends that the fourth cause of action for equitable estoppel must fail because no such cause of action exists under California law. ((Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1463 [“As a stand-alone cause of action for equitable estoppel will not lie as a matter of law, the court properly sustained State Farm’s general demurrer to Behnke’s equitable estoppel claim.”].) RBW counters that notwithstanding the labeling of the claim as one for equitable estoppel, a claim for declaratory relief has been sufficiently stated. In support of the equitable estoppel “claim,” RBW alleges that “[e]quity requires that the City be estopped from asserting that (i) the ALPIF was terminated by way of Plaintiff’s purported defaults, and (ii) the Reimbursement Agreement was not superseded by the ALPIF.” (FAC, ¶ 124.) The Court does not find that this is a proper subject of declaratory relief.

Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437, subd. (a).)

In the FAC, RBW alleges that the City and RBW entered into an agreement to develop the Redondo Beach waterfront (the “Waterfront Project”). RBW alleges that the City breached the Agreement for Lease of Property and Infrastructure Financing (“ALPIF”) between the parties by, among other things, failing and refusing to correct the Environmental Impact Report (“EIR”) for the Waterfront Project. (FAC, ¶ 63(ii), 72-77.) RBW further alleges that the City breached and repudiated the ALPIF by “refusing to prepare and recirculate a revised EIR, in violation of, among other things, Section 303 and 721 of the ALPIF and the implied covenant of good faith and fair dealing” and failing and refusing “to cooperate, as required under the ALPIF, to either extend the term of Plaintiff’s Vesting Tentative Tract Map or confirm that the term of Plaintiff’s Vesting Tentative Tract Map had been extended by virtue of, among other things, the pending litigation.” (FAC, ¶ 117, items 11 and 12.) RBW seeks a judgment that the City “correct the EIR in accordance with the CEQA Judgment issued by Judge Chalfant.” (FAC, Prayer for Relief, ¶ 3(k).)

The City contends that the above allegations are improper matter that must be stricken from the FAC.

First, the City contends that RBW cannot state a claim for damages relating to the Vesting Tentative Tract Map (“VTTM”) because RBW did not present the City with the required notice of claim under the Government Claims Act. ((See Gov. Code, § 905 [requiring presentment of claims for money or damages against public entities].) The City contends that in order to file a damages claim against the City related to the VTTM, RBW was required to first present a notice of claim to the City by no later than March 25, 2020, one year after the accrual of the cause of action. ((See Id., § 911.2, subd. (a).) According to the City, the cause of action accrued on March 25, 2019, based on RBW’s allegation in the FAC that the VTTM was deemed approved as a matter of law on that date. (FAC, ¶ 98.) But because RBW does not allege that a claim for the City’s failure/refusal to cooperate to either extend the term of the VTTM or confirm that the term of the VTTM was extended by the pending litigation (FAC, ¶ 117, item 12) was timely presented to the City, the City argues that RBW is now barred from pursuing a claim for damages based on this particular breach of the ALPIF.

RBW counters that it fully complied with the Government Claims Act by presenting a government claim to the City on March 27, 2017 that alleges that the City repudiated the ALPIF and abandoned the Waterfront Project. (FAC, ¶ 54, Ex. F.) RBW contends that it was not required to allege its injury with any more specificity than that because Government Code section 910, subdivision (d) requires only that a claimant provide “[a] general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.” (See also Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447 [“The claim, however, need not specify each particular act or omission later proven to have caused the injury.”].) RBW argues that it could not have predicted that the City would breach the ALPIF in new and different ways after the filing of the government claim, and in any event, RBW is not required to file a new claim each time the City breached the ALPIF. ((See Ocean Services Corp. v. Ventura Port Dist. (1993) 15 Cal.App.4th 1762, 1777 [finding that where a defendant public entity “continued to breach its contractual duties” “[a] new statutory claim was not required for each damage flowing from the contractual breach”].) Although the City contends that the VTTM claim is not simply another breach of the ALPIF but a completely unrelated and new event for which RBW was required to present a separate notice of claim, the Court does not find that this is so. As alleged in the FAC, the VTTM “claim” is part of a series of actions allegedly taken by the City to breach and repudiate the ALPIF.

Second, the City seeks to strike the allegation that the City breached the ALPIF by “refusing to prepare and recirculate a revised EIR.” (FAC, ¶ 117, item 11.) The City contends that RBW cannot state a claim based on this particular breach because the Waterfront Project had already been abandoned on July 2, 2018, and pursuant to the California Environmental Quality Act (“CEQA”) and the judgment in the parties’ separate CEQA action, the City was not required to prepare or recirculate an EIR on an abandoned project.

In the FAC, RBW alleges that on July 30, 2018, Judge Chalfant entered a judgment setting aside the EIR and directing the City as follows: “Unless the Waterfront Project is abandoned, withdrawn, or all CEQA issues determined by the Court against the City are no longer germane to any new project or any alternative to the project, prepare and circulate for public review a revised EIR, or revised EIR portions as may be appropriate or necessary under CEQA, adequately addressing [four discrete issues].” (FAC, ¶ 73.) The City contends that RBW abandoned the Waterfront Project by withdrawing its permit applications. (RFJN, Ex. B, p. 2.)

RBW disputes that it abandoned the Waterfront Project and counters that it was the City that abandoned the Waterfront Project, and not RBW. RBW contends that the applications were withdrawn because of the City’s failure to complete the boat ramp application and its failure to correct ministerial defects in the EIR, which would have resulted in summary denial of the permits. (FAC, ¶¶ 52, 75.) The Court notes that RBW cites to the Declaration of John D. Spurling to supplement its arguments, which is improper. In any event, in light of the disputed nature of the “abandonment” of the Waterfront Project, the Court finds that striking the allegations on this basis would be inappropriate at the pleadings stage.

The City also argues that RBW’s EIR “claim” is barred by the applicable statute of limitations. RBW presented a notice of claim to the City regarding the EIR on October 1, 2018. (FAC, Ex. O.) The City did not respond to the claim, and so RBW was required to file a lawsuit within two years of the date of accrual of the claim, which the City contends was July 2, 2018 (when RBW purportedly abandoned the Waterfront Project). ((Gov. Code, § 945.6, subd. (a)(2).) But in light of the fact that the Court cannot determine based on the pleadings and judicially noticeable facts that RBW abandoned the Waterfront Project or even when it may have abandoned the Waterfront Project, the Court does not find that the face of the pleadings reveals a statute of limitations bar.

Conclusion

Based on the foregoing, the Court sustains the City’s demurrer to the fourth cause of action of the FAC, without leave to amend.

The Court denies the City’s motion to strike in its entirety.

RBW is ordered to give notice of this ruling.

DATED: March 26, 2021 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

Case Number: BC682833    Hearing Date: January 25, 2021    Dept: 50

 

 

Superior Court of California

County of Los Angeles

Department 50

redondo beach waterfront, llc,

Plaintiff,

vs.

city of redondo beach, et al.,

Defendants.

Case No.:

BC 682833

Hearing Date:

January 25, 2021

Hearing Time:

2:00 p.m.

[TENTATIVE] ORDER RE:

DEFENDANT CITY OF REDONDO BEACH’S SPECIAL MOTION TO STRIKE SLAPP SUIT

AND RELATED CROSS-ACTION

Background

Defendant City of Redondo Beach (the “City”) brings this special motion to strike the Complaint of Plaintiff Redondo Beach Waterfront, LLC (“RBW”) filed on November 9, 2017.

The Complaint asserts causes of action for deprivation of substantive due process rights under color of state law, deprivation of procedural due process rights under color of state law, breach of contract, and declaratory judgment.

RBW alleges that it and the City entered into a development project for the Redondo Beach waterfront, the “Waterfront Project.” (Compl., ¶¶ 18-19.) RBW invested more than $15 million in the Waterfront Project. (Compl., ¶ 23.) In June 2016, RBW submitted its application for various land use entitlements (the “Waterfront Entitlements”). (Compl., ¶ 24.) RBW received notice from the City that its application for Vesting Tentative Tract Map No. 74207 (“VTTM”) was “deemed complete” on June 23, 2016. (Compl., ¶ 24.) RBW alleges that as a result, it has vested rights to proceed with the Waterfront Project in compliance with local regulations in place at that time. (Compl., ¶¶ 26-27.)

On January 31, 2017, the City and RBW entered into an Agreement for Lease of Property and Infrastructure Financing (“ALPIF”). (Compl., ¶ 28.) RBW alleges that under the ALPIF, the City agreed to move forward with the Waterfront Project and lease various parcels of property to RBW. (Compl., ¶ 31.) However, the City allegedly breached the ALPIF and violated RBW’s rights in the following ways: 1) failing to protect and jeopardizing RBW’s property and contractual rights, permits, and VTTM and/or failing to ensure that it would be able to perform its own obligations under the ALPIF, 2) seeking out a new development partner when the City is obligated to lease portions of the Waterfront to RBW under the ALPIF, 3) seeking to redesign the Waterfront Project to the exclusion of RBW, 4) allowing officials who have a clear conflict of interest to continue to make decisions and/or participate in decisions or conduct that affect the ALPIF and RBW’s rights thereunder, 5) refusing to allow RBW access to records as required under Section 207 of the ALPIF, 6) failing to submit the complete application for the required boat ramp to the Coastal Commission within 90 days after the effective date of the ALPIF, 7) using the Reimbursement Agreement, an agreement between the parties that was allegedly superseded by the ALPIF, to manufacture a breach, 8) using RBW’s filing of a complaint in federal court to manufacture defaults under the ALPIF, and 9) declaring a forfeiture/termination of the ALPIF when it had no right to do so. (Compl., ¶ 81.) In particular, RBW alleges that certain City officials (Bill Brand, Nils Nehrenheim, and Todd Lowenstein) came together to undermine the Waterfront Project by placing an initiative known as Measure C on the ballot. (Compl., ¶¶ 41-42.) RBW alleges that Measure C was designed to stop the Waterfront Project. (Compl., ¶ 41.)

The City moved pursuant to Code of Civil Procedure section 425.16 for an order striking the Complaint in its entirety. On July 24, 2018, the Court issued an order denying the City’s special motion to strike (the “Anti-SLAPP Order”), finding that the City had not satisfied its burden on prong one of the anti-SLAPP analysis—whether RBW’s causes of action arose from acts in furtherance of the right to petition or free speech. For that reason, the Court did not conduct an analysis of prong two—whether RBW had a likelihood of prevailing on the merits of its claims. The City appealed the Anti-SLAPP Order, and on July 15, 2020, the Court of Appeal issued the remittitur on the City’s appeal wherein the Court of Appeal affirmed in part and reversed in part the Court’s July 24, 2018 order. The Court of Appeal found that some of the conduct alleged in RBW’s Complaint arose from protected activity, and so an analysis of prong two was required. The Court of Appeal remanded the case so that this Court could determine whether the claims arising from protected conduct have sufficient merit to survive the special motion to strike.

RBW requested and was granted leave to file supplemental briefing in opposition to the City’s special motion to strike. The Court is in receipt of RBW’s supplemental brief as well as the City’s responsive brief.

The Court now considers whether RBW has shown a likelihood of success on the merits of the Complaint.

Evidence[1]

The Court grants RBW’s Request for Judicial Notice Nos. 1-10.

The Court rules on the parties’ evidentiary objections as follows:

RBW’s objections to the Declaration of Aaron Jones: no. 2 is sustained; the remainder are overruled. The Court notes that the objections are numbered starting with 2, so there is no objection no. 1.

The City’s objections to the Declaration of Jean Paul Wardy: objection to paragraph nos. 2 and 14(e) are overruled; objections to paragraph nos. 8, 12, 14(a), 14(b), 14(c), 14(d) are sustained.

The City’s objections to the exhibits in RBW’s Compendium of Exhibits: objection to Exhibits 4, 5, 6, 9, 10, 14, 22, 23, and 32 are sustained; objection to Exhibit 28 is overruled.

RBW’s objections to the Third Declaration of Matthew D. Hinks: no. 2 is overruled;[2] no. 3 is sustained as to the contents of the subject notice, but otherwise, it is overruled; no. 4 is overruled; no. 5 is sustained; no 6 is sustained with regard to the contents of the subject letter, but otherwise it is overruled.

Discussion

The anti-SLAPP statute is “a mechanism through which complaints that arise from the exercise of free speech rights can be evaluated at an early stage of the litigation process and resolved expeditiously.” ((Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [internal quotations omitted].) Courts use a two-step process for determining whether an action is a strategic lawsuit against public participation, or a SLAPP. First, the court determines whether the defendant has established that the challenged claim arises from protected speech. ((Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If such a showing has been made, the court “determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” ((Ibid. . .)

As set forth in the July 15, 2020 Appellate Opinion, the protected activity at issue here is (1) the City’s act of sending Measure C to the Coastal Commission[3], and (2) allowing elected City officials to participate in decisions involving RBW.

Prong Two – Probability of Prevailing

“[P]laintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ((Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476 [internal quotations omitted].) In making its determination, “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” ((Code Civ. Proc., § 425.16(b)(2).) “The court does not, however, weigh [defendant’s] evidence against the plaintiff's, in terms of either credibility or persuasiveness. Rather, the defendant's evidence is considered with a view toward whether it defeats the plaintiff's showing as a matter of law, such as by establishing a defense or the absence of a necessary element.” ((1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)

Breach of Contract

RBW contends that the City breached the ALPIF when it petitioned the Coastal Commission to apply Measure C to the Waterfront Project.

Section 303 of the ALPIF provides in pertinent part as follows:

“City staff shall work cooperatively with the Developer to assist in coordinating the expeditious processing and consideration of all necessary permits, entitlements, and approvals. However, the execution of this Agreement does not constitute the granting of or a commitment to obtain, approve, or grant any required land use permits, entitlements, or approvals required by City, and City shall apply the same standards and retain the same discretion over such matters as it has with respect to any other applications for land use and other entitlements, permits, and approvals submitted to the City. City shall further retain complete discretion to amend the general plan, zoning or other land use designations or requirements applicable to the Waterfront Project Site. The foregoing shall not modify any obligations City may have under existing laws with respect to vested rights for the Waterfront Project.” (RBW’s Ex. 3, § 303.)

The last sentence regarding vested rights is of particular importance because it has been determined by the Court of Appeal in a related case that RBW “has obtained vested rights against the City under Government Code section 66498.1 and those rights vested before the passage of Measure C.” ((Redondo Beach Waterfront, LLC v. City of Redondo Beach (2020) 51 Cal.App.5th 982, 987.) “The City is therefore prohibited from applying subsequently amended local ordinances, standards, and policies—such as the amended ordinances contained in Measure C—to the [Waterfront] Project.” ((Id. at p. 998.)

RBW submits evidence that after Measure C passed (on March 7, 2017), the City sent RBW a force majeure letter, claiming that the City would not move forward with the Waterfront Project because of Measure C. (RBW’s Ex. 8.) RBW asserts that the City then refused to assist RBW with the processing of its Coastal Development Permits, and instead, the City petitioned the Coastal Commission to apply Measure C to the Waterfront Project and defer approval of the Coastal Development Permits. This was done at the May 23, 2017 City Council meeting, where the City passed Resolution No. CC-1705-142, directing staff to send Measure C to the Coastal Commission (the “Resolution”). (RBW’s Ex. 30.) RBW highlights a suggestion by Mayor Bill Brand, recorded in the minutes of the City Council meeting, to add a section to the Resolution stating, “City Council hereby requests that the California Coastal Commission hear and consider the amendments of Measure C before considering any other coastal development permits.” (RBW’s Ex. 30, p. 12.) RBW contends that the only coastal development permits impacted by the Mayor’s request were RBW’s coastal development permits, and the only purpose of the request was to delay and obstruct the processing of RBW’s permits. RBW argues that these actions constitute a breach of section 303 of the ALPIF, namely, the provision requiring the City to “assist” in the processing of RBW’s permits.

The City counters that under the Coastal Act, the City was required to issue a resolution submitting Measure C to the Coastal Commission. (RBW’s Ex. 11 [text of Resolution No. CC-1705-142 citing Public Resources Code section 30510(a) and 30514 and 14 CCR section 13551(a)].)[4] The City argues that there is no evidence that it was entitled to ignore its obligations under the law to submit Measure C to the Coastal Commission through a resolution. The City also points out that the Resolution does not contain an explicit request by the City to the Coastal Commission to apply Measure C to the Waterfront Project. The City contends that RBW’s reliance on statements made by City officials at the City Council meeting is misplaced because those statements are not actions by the City and cannot constitute breach of the ALPIF. Indeed, despite Mayor Brand’s suggestion to include a section in the Resolution that the Coastal Commission consider Measure C “before considering any other coastal development permits,” that section does not appear in the final version of the Resolution. (RBW’s Ex. 11.) Nevertheless, RBW argues that the City cannot evade liability for breach of the ALPIF even if submitting Measure C to the Coastal Commission was required under applicable law. RBW contends that by agreeing that the City’s obligations under the ALPIF were subject to RBW’s vested rights, the City accepted the risk that a subsequent change in the law (such as Measure C) would defeat its performance under the ALPIF. ((See Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach (2001) 86 Cal.App.4th 534, 557 [noting with approval contract provisions that would impose on a city “the risk of a performance-defeating change in the law”].) But as noted by the City, RBW’s vested rights as to the City do not preclude the Coastal Commission from regulating the Waterfront Project. As set forth by the Court of Appeal in Redondo Beach Waterfront, the Coastal Commission “has the ultimate authority to ensure that coastal development conforms to the policies embodied in the state’s Coastal Act.” ((Redondo Beach Waterfront, LLC v. City of Redondo Beach, supra, 51 Cal.App.5th at p. 999.) Thus, “vested statutory rights flowing from a local agency’s approval of a vesting tentative map bind the local agency—not the state.” (Ibid.) Based on this, it cannot be concluded as a matter of law that the City’s agreement that it was subject to RBW’s vested rights means that it was accepting the risk of a performance-defeating change in the law when neither “the applicability of the Coastal Act [nor] the oversight provided by the Coastal Commission is curtailed by [RBW’s] vested rights.” ((Id. at p. 998.)

RBW also contends that the City breached the ALPIF by allowing officials with admitted conflicts of interest to participate in decisions regarding the ALPIF.

Section 722 of the ALPIF provides as follows: “No member, official or employee of City shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any limited partnership, partnership or association in which he is directly or indirectly interested.” (RBW’s Ex. 3.)

RBW submits that since before RBW and the City entered into the ALPIF, Bill Brand, Nils Nehrenheim, and Todd Loewenstein opposed the Waterfront Project. (Wardy Decl., ¶ 10.) Mr. Nehrenheim is one of the founders of Rescue Our Waterfront, the authors of Measure C and affiliates of Building a Better Redondo, the entity that filed a CEQA action to invalidate RBW’s entitlements. (RBW’s Ex. 7, at p. 16.) All three ran for elected office in the City of Redondo Beach (Mr. Brand for mayor and the other two for councilmember) on anti-Waterfront Project platforms. (Wardy Decl., ¶ 10.) On or about October 18, 2016, the City Council heard the appeal of the Harbor Commission’s approval of certain entitlements for the Waterfront Project, and Mr. Brand recused himself from participating in the vote based on a conflict of interest. (Wardy Decl., ¶ 11; RBW’s Ex. 2, p. 44.) Thereafter, Mr. Brand and Mr. Nehrenheim appealed the City Council’s decision to the Coastal Commission. (Wardy Decl., ¶ 11.) Despite this conflict of interest, the City has allowed Mr. Brand and Mr. Nehrenheim to continue making decisions affecting the Waterfront Project, such as participating in the decision to not complete a boat ramp application for the Waterfront Project. (Wardy Decl., ¶ 12; RBW’s Ex. 12.)

The City argues that RBW has presented no evidence of breach of Section 722 of the ALPIF because there is no evidence that Messrs. Brand, Nehrenheim, or Loewenstein have any “personal” or pecuniary interest in the ALPIF or the Waterfront Project. RBW counters that “personal interest” as defined in Section 722 encompasses “personal animosity” and not just a financial or economic interest. But the authorities cited by RBW do not support this expansive definition of “personal interest.” In Clark v. City of Hermosa Beach, the Court of Appeal held that a councilmember’s “conflict of interest arose, not because of his general opposition to 35-foot buildings, but because the specific project before the Council, if approved, would have had a direct impact on the quality of his own residence.” ((Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1172-1173.) The Court of Appeal noted that “[i]n addition, [the councilmember’s] personal animosity . . . contributed to his conflict of interest; he was not a disinterested, unbiased decisionmaker.” ((Id. at p. 1173.) This suggests that in order to find the existence of a conflict of interest some showing of a pecuniary interest is required. RBW also cites to Government Code section 11425.40, but that section provides that although an officer presiding over an adjudicative proceeding is subject to disqualification for “bias, prejudice, or interest,” “[i]t is not alone or in itself grounds for disqualification . . . that the presiding officer: …. (2) … has in any capacity expressed a view on, a legal, factual, or policy issue presented in the proceeding.” In other words, if the only evidence of bias or interest is that a presiding officer has previously expressed a view on the issue presented, there is no basis for disqualification. Here, RBW has offered evidence only of previous views expressed by certain decisionmakers. The Court finds that this is insufficient to show breach of Section 722 of the ALPIF.

Due Process

RBW contends that passing the Resolution and allowing conflicted officials to participate in Waterfront Project decisions violate its due process rights.

In support of its substantive due process claim, RBW alleges that the City’s conduct was “arbitrary and unreasonable” and was “designed solely to target and discriminate against [RBW] and harm [RBW], its property rights, and [RBW’s] rights under the ALPIF. (Compl., ¶ 67.) The substantive due process claim is not addressed in RBW’s supplemental brief, but based on RBW’s opposition to the anti-SLAPP motion, RBW’s contention is that the City repudiated RBW’s vested rights by attempting to apply Measure C to the Waterfront Project, and this conduct was arbitrary and unreasonable.

“Substantive due process protects against arbitrary government action.” ((Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 855); (see also Kawaoka v. City of Arroyo Grande (9th Cir. 1994) 17 F.3d 1227, 1234 [“To establish a violation of substantive due process, the [plaintiffs] are required to prove that the City’s [action] was clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” (internal quotations omitted)].) “A substantive due process violation requires more than ‘ordinary government error,’” it “requires some form of outrageous or egregious conduct constituting ‘a true abuse of power.’” (Las Lomas Land Co., LLC v. City of Los Angeles, supra, 177 Cal.App.4th at p. 855-856.)

RBW argues that the City’s attempt to retroactively apply Measure C to the Waterfront Project had no legitimate purpose because Measure C states that it does not apply to vested rights. (RBW’s Ex. 7, p. 28, Section 8B [“If a majority of the Redondo Beach voters vote in favor of this Act, its provisions shall apply to any project concerning which development rights have not vested as of the date the initiative petition that contains this Act was found to have qualified for placement on the ballot.”].) The City counters that Measure C is a zoning ordinance of general applicability, and that RBW has failed to present any evidence that the City attempted to apply Measure C to the Waterfront Project. To the extent that RBW argues that passing the Resolution, which authorized submission of Measure C to the Coastal Commission, was the “attempt” to apply Measure C to the Waterfront Project, the Court refers back to the discussion above concerning the City’s legal obligation to submit Measure C to the Coastal Commission. The Court reiterates here that nothing in Measure C or the Resolution indicates that the City’s submission of Measure C to the Coastal Commission constituted a petition or request that the Coastal Commission apply Measure C to the Waterfront Project. The Court finds that there is no showing that the City acted in an arbitrary or unreasonable manner in its submission of Measure C to the Coastal Commission.

The City separately argues that the due process claims must fail because RBW has no protectable property right. To state a claim for a due process violation, RBW must establish the existence of a protected property right. ((Bateson v. Geisse (9th Cir. 1988) 857 F.2d 1300, 1305.) Whether RBW has a protected property interest is determined by California law. (See Samson v. City of Bainbridge Island (9th Cir. 2012) 683 F.3d 1051, 1057 [“Property interests derive . . . from existing rules or understandings that stem from an independent source such as state law . . . .” (internal quotation omitted)].) “[W]hether a property-holder possesses a legitimate claim of entitlement to a permit or approval turns on whether, under state and municipal law, the local agency lacks all discretion to deny issuance of the permit or to withhold its approval.” (Clark v. City of Hermosa Beach, supra, 48 Cal.App.4th at p. 1180 [emphasis in original].) “Any significant discretion conferred upon the local agency defeats the claim of a property interest . . . .” (Ibid.)

Pursuant to the above authorities, the City contends that because RBW’s rights to develop the Waterfront Project depend on the issuance of coastal development permits by the Coastal Commission and the Coastal Commission denying appeals from the City’s approval of the City-issued permits, RBW has no protectable property right. But the claim is that the City interfered with RBW’s statutory vested right “to proceed with development in substantial compliance with the ordinances, policies, and standards” of the local agency in effect on June 23, 2016. (See Gov. Code, § 66498.1, subd. (b).) The City does not dispute that RBW’s vested right pursuant to Government Code section 66498.1, subdivision (b) is a protected property interest.

In support of its procedural due process claim, RBW alleges that Messrs. Brand, Nehrenheim, and Loewenstein have a “clear conflict of interest” relating to the Waterfront Project, but despite this conflict, the City has continued to allow them to make decisions impacting the Waterfront Project. (Compl., ¶ 72.) RBW contends that it was entitled to have its rights adjudicated in unbiased proceedings, and Messrs. Brand and Nehrenreim’s participation in decisionmaking relating to the Waterfront Project violated its due process rights. One such decision concerned the provision in the ALPIF (section 301.2) requiring the City to submit a boat ramp application for the Waterfront Project within 90 days of the ALPIF’s approval (the ALPIF was approved on January 31, 2017). (RBW’s Ex. 3, § 301.2.) At a June 13, 2017 council meeting, the City passed a motion directing its staff not to respond to the Coastal Commission’s request for information at Messrs. Brand and Nehrenheim’s request. (RBW’s Ex. 12, pp. 214, 229-30, 275.)

“[W]hen functioning in [] an adjudicatory capacity, the city council must be ‘neutral and unbiased.’” (Woody’s Group, Inc. v. City of Newport Beach (2015) 233 Cal.App.4th 1012, 1021.) The rule as formulated is that “there must not be an unacceptable probability of actual bias on the part of the municipal decision maker.” (Id. at p. 1022 [internal quotations omitted].) “[A]llowing a biased decision maker to participate in the decision is enough to invalidate the decision.” (Ibid.) In Woody’s Group, the Court of Appeal found that an “unacceptable probability of actual bias” had been established by evidence that a councilmember was “strongly opposed to the planning commission’s decision on [the plaintiff restaurant’s] application” for a patio cover. (Id. at pp. 1022-1023.) The councilmember had taken “a position against the project” and had been “the one to propose the motion that the lower decision be overturned.” (Id. at p. 1023.) Although the City argues that RBW must show evidence that Messrs. Brand and Nehrenheim had a financial interest in decisions involving the Waterfront Project, the outcome in Woody’s Group establishes that procedural due process rights may be violated by a showing of bias without a personal, financial interest. The Court further notes that the City offers no rebuttal to RBW’s citation of Woody’s Group. Consequently, the Court finds that RBW has shown a likelihood of success on the merits of its procedural due process claim.

Declaratory Relief

In the fourth cause of action, RBW seeks a declaration that, among other things, the City violated RBW’s substantive and procedural due process rights. (Compl., ¶ 87(h), (e).) Therefore, the declaratory relief claim rises and falls with the due process claims, as discussed above.

Prevailing Party/Fees

“[A] party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. The determination whether a party prevailed on an anti-SLAPP motion lies within the broad discretion of a trial court.” ((Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340.)

Here, because of the mixed outcome of the anti-SLAPP motion, the Court reserves its determination on the question of fees pending a noticed motion on the issue of which party is the prevailing party and what fees and costs are thus recoverable.

Conclusion

Based on the foregoing, the City’s special motion to strike SLAPP suit is granted in part and denied in part.

The Court grants the special motion to strike with respect to the first cause of action for deprivation of substantive due process rights under color of state law (42 U.S.C. section 1983), the third cause of action for breach of contract, and the fourth cause of action for declaratory judgment.

To the extent that the special motion to strike is granted, it is limited to allegations of the following protected activity: (1) the City’s act of sending Measure C to the Coastal Commission, and (2) allowing elected City officials to participate in decisions involving RBW.

Because the City was the moving party on the anti-SLAPP motion, the Court orders the City to file and serve a noticed motion pursuant to Code of Civil Procedure section 425.16, subdivision (c) on the issue of whether the City is the prevailing party and what fees and costs are recoverable.

The City is ordered to provide notice of this Order.

DATED: January 25, 2021

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court


[1] The Court incorporates its rulings on the evidentiary objections set forth in its July 24, 2018 Anti-SLAPP Order.

[2] There is no objection no. 1.

[3] As alleged in the Complaint: “On May 23, 2017, the City passed Resolution No. CC-1705-142 to submit Measure C for certification before the Coastal Commission to have Measure C retroactively applied to Plaintiff’s vested rights. Absent such certification by the City, the Coastal Commission could not apply Measure C to the Waterfront Project.” (Compl., ¶ 51.)

[4] The relevant text is as follows:

WHEREAS, Public Resources Code Section 30514 provides, in relevant part, that, “Any proposed amendments to a certified local coastal program shall be submitted to, and processed by, the commission in accordance with the applicable procedures and time limits specified in Sections 30512 and 30513”;

WHEREAS, California Code of Regulations, Title 14, Section 13551(a) provides that a proposed amendment to a certified LCP shall be submitted to the Coastal Commission “pursuant to a resolution adopted in accordance with the provisions of Public Resources Code Section 30510(a)”;

WHEREAS, Public Resources Code Section 30510(a) provides that the resolution must certify that the proposed amendment “is intended to be carried out in a manner fully in conformity with [the Coastal Act]”.

Case Number: BC682833    Hearing Date: November 06, 2020    Dept: 50

 

 

Superior Court of California

County of Los Angeles

Department 50

redondo beach waterfront, llc,

Plaintiff,

vs.

city of redondo beach, et al.

Defendants.

Case No.:

BC 682833

Hearing Date:

November 6, 2020

Hearing Time:

10:00 a.m.

[TENTATIVE] ORDER RE:

PLAINTIFF’S MOTION TO CONSIDER ADDITIONAL AUTHORITY IN OPPOSITION TO DEFENDANT’S ANTI-SLAPP MOTION

AND RELATED CROSS-ACTION

Background

On November 9, 2017, Plaintiff Redondo Beach Waterfront, LLC (“RBW”) filed a complaint against the City of Redondo Beach (the “City”). The Complaint asserts causes of action for deprivation of substantive due process rights under color of state law, deprivation of procedural due process rights under color of state law, breach of contract, and declaratory judgment.

RBW alleges that it and the City entered into a development project for the Redondo Beach waterfront, the “Waterfront Project.” (Compl., ¶¶ 18-19.) RBW invested more than $15 million in the Waterfront Project. (Compl., ¶ 23.) In June 2016, RBW submitted its application for various land use entitlements (the “Waterfront Entitlements”). (Compl., ¶ 24.) On June 23, 2016, RBW received notice from the City that its application for Vesting Tentative Tract Map No. 74207 (“VTTM”) was “deemed complete.” (Compl., ¶ 24.) RBW alleges that as a result, it has vested rights to proceed with the Waterfront Project in compliance with local regulations in place at that time. (Compl., ¶¶ 26-27.)

On January 31, 2017, the City and RBW entered into an Agreement for Lease of Property and Infrastructure Financing (“ALPIF”). (Compl., ¶ 28.) RBW alleges that under the ALPIF, the City agreed to move forward with the Waterfront Project and lease various parcels of property to RBW. (Compl., ¶ 31.) However, the City allegedly breached the ALPIF and violated RBW’s rights in the following ways: 1) failing to protect and jeopardizing RBW’s property and contractual rights, permits, and VTTM and/or failing to ensure that it would be able to perform its own obligations under the ALPIF, 2) seeking out a new development partner when the City is obligated to lease portions of the Waterfront to RBW under the ALPIF, 3) seeking to redesign the Waterfront Project to the exclusion of RBW, 4) allowing officials who have a clear conflict of interest to continue to make decisions and/or participate in decisions or conduct that affect the ALPIF and RBW’s rights thereunder, 5) refusing to allow RBW access to records as required under Section 207 of the ALPIF, 6) failing to submit the complete application for the required boat ramp to the Coastal Commission within 90 days after the effective date of the ALPIF, 7) using the Reimbursement Agreement, an agreement between the parties that was allegedly superseded by the ALPIF, to manufacture a breach, 8) using RBW’s filing of a complaint in federal court to manufacture defaults under the ALPIF, and 9) declaring a forfeiture/termination of the ALPIF when it had no right to do so. (Compl., ¶ 81.) In particular, RBW alleges that certain City officials (Bill Brand, Nils Nehrenheim, and Todd Lowenstein) came together to undermine the Waterfront Project by placing an initiative known as Measure C on the ballot. (Compl., ¶¶ 41-42.) RBW alleges that Measure C was designed to stop the Waterfront Project. (Compl., ¶ 41.)

The City moved pursuant to Code of Civil Procedure section 425.16 for an order striking the Complaint in its entirety. On July 24, 2018, the Court issued an order denying the City’s special motion to strike (the “Anti-SLAPP Order”), finding that the City had not satisfied its burden on prong one of the anti-SLAPP analysis—whether RBW’s causes of action arose from acts in furtherance of the right to petition or free speech. For that reason, the Court did not conduct an analysis of prong two—whether RBW had a likelihood of prevailing on the merits of its claims. The City appealed the Anti-SLAPP Order, and on July 15, 2020, the Court of Appeal issued the remittitur on the City’s appeal wherein the Court of Appeal affirmed in part and reversed in part the Court’s July 24, 2018 order. The Court of Appeal found that some of the conduct alleged in RBW’s Complaint arose from protected activity, and so an analysis of prong two was required. The Court of Appeal remanded the case so that this Court could determine whether the claims arising from protected conduct have sufficient merit to survive the special motion to strike.

RBW now moves for an order to file supplemental briefing in opposition to the City’s special motion to strike. The City opposes.

Request for Judicial Notice

Plaintiff’s Request for Judicial Notice in Support of Plaintiff’s Reply in Support of Motion to Consider Additional Authority in Opposition to Defendant’s Anti-SLAPP Motion is granted.

Discussion

RBW contends that, since its original opposition to the City’s special motion to strike, there is new law that clarifies the rights of the parties, namely, Redondo Beach Waterfront, LLC v. City of Redondo Beach (2020) 51 Cal.App.5th 982 (the “Declaratory Relief Opinion”). That case also relates to the same waterfront development project at issue in this case. There, RBW filed a petition for writ of mandate and complaint for declaratory and injunctive relief against the City asserting, among other things, that Measure C could not be applied retroactively to the Waterfront Project because RBW’s statutory rights had vested prior to the initiative’s passage. (Id. at pp. 990-991.) The trial court found that RBW’s rights “vested on June 23, 2016, when its application for the [VTTM] was deemed complete by the City” and so “those rights were unaffected by the passage of Measure C.” (Id. at p. 993.) The Court of Appeal affirmed this finding. (Id. at pp. 994-999.) RBW argues that, to the extent that the City relies on the assertion that RBW had no vested rights to support its prong two analysis, that argument is foreclosed by the Declaratory Relief Opinion, and so RBW should be given the opportunity to make that argument in opposition to the special motion to strike.

The City disputes that the Declaratory Relief Opinion actually renders any of its arguments in its special motion to strike inapplicable or incorrect. The City argues that the trial court’s ruling in Redondo Beach Waterfront, LLC v. City of Redondo Beach, supra, was issued before RBW filed its opposition to the special motion to strike, and so it could have, and in fact did, use those arguments in support of its opposition. The City also argues that RBW offers no authority for the filing of supplemental briefing in support of or against a special motion to strike. But the Court notes that RBW cites to various cases in support of the general proposition that intervening “new law” is appropriately taken into account when rendering legal decisions, even after the legal decisions are made. (See, e.g., Code Civ. Proc., § 1008, subd. (c) [“If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.”]; Consumer Watchdog v. Department of Managed Health Care (2014) 225 Cal.App.4th 862, 881 [noting that “we apply the law as it currently exists”]; A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 692 [noting that “a plaintiff may take advantage of a change in law during an appeal to bolster its standing on remand”].)

The City contends that supplemental briefing should not be permitted because the purpose of the anti-SLAPP statute is to “provide for the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510, 1519.) Essentially, the City argues that anything that delays the resolution of the anti-SLAPP motion is disfavored. The Court agrees that one of the policy goals of the anti-SLAPP law is quick resolution of unmeritorious SLAPP lawsuits. (See, e.g., Code Civ. Proc., § 425.16, subd. (f) [setting time limit for hearing anti-SLAPP motions].) But the City points to no binding law that suggests that courts do not have discretion to consider supplemental briefing where it is necessary or helpful to resolution of the motion. Indeed, courts have discretion to consider late-filed anti-SLAPP motions (Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 684) and to continue a hearing to allow for discovery to be conducted (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868).

Accordingly, the Court finds that supplemental briefing may be helpful in the Court’s ultimate ruling on the City’s special motion to strike. However, the supplemental briefing is limited only to discussion of Redondo Beach Waterfront, LLC v. City of Redondo Beach, supra, and its application to RBW’s burden of proof on prong two of the anti-SLAPP analysis. No new evidence or other facts may be presented; only citations to evidence already existing in the record is permitted. With regard to the opinion by the Court of Appeal in this matter, that opinion already is the law of the case which binds this Court. There is no need for supplemental briefing regarding that opinion.

Conclusion

Based on the foregoing, the Court grants RBW’s motion.

The Court orders that RBW may file a supplemental brief of no more than 5 pages, addressing Redondo Beach Waterfront, LLC v. City of Redondo (2020) 51 Cal.App.5th 982, and that the City may file a supplemental responsive brief of no more than 5 pages.

RBW’s brief shall be filed and served no later than nine court days before the date of the hearing on the anti-SLAPP motion. The City’s brief shall be field and served no later than five court days before the date of the hearing on the anti-SLAPP motion.

RBW is to provide notice of this ruling.

DATED: November 6, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

Case Number: BC682833    Hearing Date: October 07, 2020    Dept: 50

 

 

Superior Court of California

County of Los Angeles

Department 50

redondo beach waterfront, llc,

Plaintiff,

vs.

city of redondo beach, et al.

Defendants.

Case No.:

BC 682833

Hearing Date:

October 7, 2020

Hearing Time:

10:00 a.m.

[TENTATIVE] ORDER RE:

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

AND RELATED CROSS-ACTION

Background

On November 9, 2017, Plaintiff Redondo Beach Waterfront, LLC (“RBW”) filed a complaint against the City of Redondo Beach (the “City”). The Complaint asserts causes of action for deprivation of substantive due process rights under color of state law, deprivation of procedural due process rights under color of state law, breach of contract, and declaratory judgment.

On May 22, 2018, the City filed a Cross-Complaint against RBW. Both the Complaint and the Cross-Complaint relate to a waterfront development project entered into by the City and RBW and the underlying Agreement for Lease of Property and Infrastructure Financing (“ALPIF”). Each party alleges that the other breached the ALPIF: the City by preventing RBW from proceeding with development of the project after RBW had already invested millions of dollars into the project, and RBW by violating a forum selection clause when it filed a complaint in federal court and by failing to reimburse the City for certain costs.

On July 24, 2018, the Court issued an order denying the City’s special motion to strike the Complaint pursuant to Code of Civil Procedure section 425.16 (the “Anti-SLAPP Order”). The City appealed the Anti-SLAPP Order, and while this case was stayed pending the outcome of the appeal, RBW filed a separate action against the City on April 18, 2019, seeking declaratory relief based on, among other things, the City’s breaches of the ALPIF that occurred after the filing of the original Complaint (the “Declaratory Relief Action”).

On July 15, 2020, the Court of Appeal issued the remittitur on the City’s appeal of the Anti-SLAPP Order. On July 20, 2020, the Court sustained in part the City’s demurrer to the Complaint in the Declaratory Relief Action without prejudice to RBW’s filing of a motion to amend the complaint in the instant action.

RBW now moves for leave to file a First Amended Complaint to include allegations related to the “new” breaches of the ALPIF as well as causes of action for equitable estoppel and declaratory relief. The City opposes.

Discussion

Pursuant to Code of Civil Procedure section 473, subdivision (a)(1), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” Amendment may be allowed at any time before or after commencement of trial. (Code Civ. Proc., § 576.) “[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 (internal citations omitted).) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend….” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments. ((Cal. Rules of Court, rule 3.1324(a).) The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number. ((Ibid. .) Finally, a separate supporting declaration specifying the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reason why the request for amendment was not made earlier must also accompany the motion. (Cal. Rules of Court, rule 3.134(b).)

The Court finds that RBW has satisfied the procedural requirements. A copy of the proposed First Amended Complaint is attached as Exhibit A to the Declaration of John Spurling, counsel for RBW. Counsel’s declaration also sets forth the effect of the amendments – to add allegations concerning the City’s breaches of the ALPIF after the filing of the original Complaint, why the amendments are necessary and proper – to permit RBW to bring all claims relating to breaches of the ALPIF in the same action, when the facts giving rise to the amendments were discovered – shortly before or after the stay was entered in the instant case, and the reason why the request for amendment was not made sooner – because of the imposition of the stay. (Spurling Decl., ¶¶ 4-7.)

The City argues that leave should not be granted because the proposed claims fail to state a claim for relief. But the Court does not find this sufficient reason to deny the motion. ((See Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [“the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings”].) The City also argues that RBW’s assertion that the automatic stay resulting from the appeal of the Anti-SLAPP Order prevented RBW from amending sooner is false. The City argues that the new claims proposed by RBW do not apply “to the matters embraced in or affected by the appeal,” so the amendments could have been made sooner. (Code Civ. Proc., § 916, subd. (b).) Nevertheless, the Court notes that the City does not argue that it will be prejudiced by the amendment, and the Court finds that no such prejudice exists.

Conclusion

Based on the foregoing, the Court grants RBW’s motion. The Court orders RBW to file and serve its First Amended Complaint within 3 days of the date of this order.

RBW is to provide notice of this ruling.

DATED: October 7, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

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