Beglari v. City of
Filed 5/8/13
Beglari v. City of Los Angeles CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION TWO
MEHR Z. BEGLARI et al.,
Plaintiffs
and Appellants,
v.
CITY OF LOS
ANGELES,
Defendant and Respondent.
B238950
(Los Angeles County
Super. Ct. No. BC443090)
APPEAL from
a judgment of the Superior Court
of
County. Ramona G. See,
Judge. Affirmed.
The Law
Offices of Abdulaziz, Grossbart & Rudman and Bruce D. Rudman for Plaintiffs
and Appellants.
Carmen A.
Trutanich, City Attorney, Terry P. Kaufmann Macias and Amy Brothers, Deputy
City Attorneys for Defendant and Respondent.
Plaintiffs
and appellants Mehr Z. Beglari and Vickey M. Beglari, individually and as
trustees of the Beglari Family Trust (collectively, plaintiffs) appeal from the
judgment entered in favor of the City of Los Angeles (the City) after the trial
court sustained, without leave to amend, the City’s demurrer to plaintiffs’
second amended complaint. We affirm the
judgment.
BACKGROUND
This case concerns
the City’s issuance and subsequent revocation of building permits to remodel an
existing home in the Rustic Canyon
area of Pacific Palisades. When applying
for those permits, plaintiffs erroneously calculated the required front yard
setback. As a result, they obtained
approval to construct an addition to their house, now completed, that is 14
feet closer to the street than permitted by the governing sections of the Los
Angeles Municipal Code.
The invalid
building permits and the nonconforming house built pursuant to those permits
have been the subject of litigation for the past 12 years. In 2003, a writ of mandate was issued
requiring the City to revoke the permits.
The writ was affirmed by Division One of this court in
Cal.App.4th 1344 (Horwitz I). The City subsequently reissued the revoked
permits, resulting in an order to enforce the writ. We affirmed that order in a nonpublished
opinion. (Horwitz v. City of Los Angeles (Apr. 2, 2009,
B204545) (Horwitz II).) The facts concerning the issuance and
revocation of the permits are set forth in Horwitz
I and Horwitz II. We restate the relevant facts as
necessary.
Horwitz I
In 2000,
plaintiffs submitted permit applications to the City to obtain approval for an
addition to their home at 909 Greentree Road. (Horwitz
I, supra, 124 Cal.App.4th at p. 1347.)
In their permit applications, plaintiffs miscalculated the prevailing
front yard setback, and the City accepted those miscalculations as the basis
for issuing the building permits. As a
result, plaintiffs obtained approval to build an expanded structure 14 feet
closer to the street than permitted under the municipal code. (Ibid.)
While
construction on plaintiffs’ property was underway, neighbors objected, challenging
the permits first through informal contacts with the City and then through the
administrative appeal process. (
1347, fn. 1.) At some point before or
during the administrative appeal process, the City stopped plaintiffs’
construction for approximately three weeks while it investigated the neighbors’
complaints. Based on its investigation,
the City concluded plaintiffs’ construction was in compliance with the prevailing
front yard setback and allowed the construction to proceed.
In April
2002, while their administrative appeal
was still pending, the neighbors sued the City and plaintiffs as the real
parties in interest for declaratory and injunctive relief, seeking to compel
the City to revoke the building permits and to issue a stop work order. The superior court refused to issue a
preliminary injunction on the ground that administrative remedies had not been
exhausted and because construction of plaintiffs’ home was by then almost
complete. (Horwitz I, supra, 124 Cal.App.4th at p. 1348.)
The
neighbors were unsuccessful in obtaining relief through the administrative
appeals process, and in March 2003 they filed a petition for administrative
mandamus. (Horwitz I, supra, 124 Cal.App.4th at p. 1353.) After a hearing on the writ petition, the
superior court concluded that the permits were improperly issued to plaintiffs,
based on their erroneous calculation of the prevailing front yard setback, and
must be revoked. (Id. at pp. 1355-1356.)
Plaintiffs and the City appealed that ruling, and Division One of this
court affirmed the writ. (
Horwitz II
After the
writ was issued, plaintiffs’ neighbors made repeated efforts to get the City to
take action to enforce the writ. The
City initially revoked the permits and issued an order to comply. Plaintiffs then acquired another property
located at 921 Greentree Road and filed an application for a permit to attach a
canopy to an outdoor fireplace at that property. On the same day that the City issued a permit
for the canopy, plaintiffs applied for reinstatement of the previously revoked
permits for 909 Greentree Road.
Plaintiffs’ application for reinstatement of the revoked permits stated
that although no physical changes had been made to the existing building,
reinstatement was justified because of changed circumstances. The only change that had occurred since
issuance of the writ, however, was the construction of the canopy at 921
Greentree Road. Plaintiffs claimed the
canopy changed the prevailing setback calculation for all structures on the
block, including their residence at 909 Greentree Road. Based on plaintiffs’ claim of changed
circumstances, the City reinstated the building permits and certificate of occupancy
that were the subject of the writ, relying on an exception to the front yard
setback requirement, referred to as the projecting building exception, codified
at Los Angeles Municipal Code section 12.22C5. (Horwitz
II, supra, at pp. 3-4.)
When plaintiffs’
neighbors learned that the City had reinstated the revoked permits, they filed
an application for an order to show cause re contempt for failure to comply
with the writ of mandate. The trial
court issued the OSC against the City.
All parties then entered into a settlement agreement in which they
agreed to submit to a judicial hearing on the validity of the projecting
building exception and the City’s reinstatement of the permits based on that
exception. (Horwitz II, supra, at p. 4.)
At the ensuing
judicial hearing, the neighbors and the City presented documentary evidence,
stipulated facts, and the testimony of several witnesses. Plaintiffs refused to participate. At the conclusion of the hearing, the
superior court found that the City had improperly applied the projecting
building exception in determining the prevailing setback requirement, ordered
the City to comply with the setback requirements, and prohibited the City from
reinstating or issuing permits for 909 Greentree Road unless and until
plaintiffs took lawful measures to bring the property into compliance with the
municipal code. (Horwitz II, supra, at p. 6.)
We affirmed the orders enforcing the writ. (Id. at
p. 13.)
The instant appeal
In August
2012, plaintiffs filed this action for inverse condemnation, inverse
condemnation by judicial action, and violation of civil rights under section
1983 of title 42 of the United States Code (section 1983). Plaintiffs filed a first amended complaint in
response to a demurrer filed by the City, and a second amended complaint after
the trial court sustained, with leave to amend, the City’s demurrer to the
first amended complaint. The City again
demurred to the second amended complaint and requested that the trial court
take judicial notice of Horwitz I. The trial court granted that request and
sustained the demurrer without leave to amend.
The trial
court concluded that plaintiffs failed to state a cause of action for inverse
condemnation because they did not allege facts showing that they have a
legitimate property interest at stake.
As support for this conclusion, the trial court cited the court’s
finding in Horwitz I that
“nonconforming permits†were issued in response to plaintiffs’ “substantially
erroneous applications†(Horwtiz I, supra,
124 Cal.App.4th at p. 1356, fn. omitted), and Millbrae Assoc. for Residential Survival v. Millbrae (1968) 262
Cal.App.2d 222, 246 (Millbrae) [no
property right in invalid building permit].
The trial court further concluded that plaintiffs’ claim for inverse
condemnation by judicial taking failed because it was barred by the doctrine of
collateral estoppel and because
plaintiffs alleged no facts showing that the City was liable for a taking by
the judicial branch. The court similarly
determined that collateral estoppel barred plaintiffs’ cause of action for
deprivation of civil rights and that the claim failed for the additional reason
that plaintiffs alleged no facts showing that they had a vested property right.
Judgment
was subsequently entered in the City’s favor and this appeal followed.
DISCUSSION
I. Standard of review
“On
appeal from a judgment dismissing an action after sustaining a demurrer without
leave to amend, the standard of review
is well settled. The reviewing court
gives the complaint a reasonable interpretation, and treats the demurrer as
admitting all material facts properly pleaded.
[Citations.] The court does not,
however, assume the truth of contentions, deductions or conclusions of
law. [Citation.] The judgment must be affirmed ‘if any one of
the several grounds of demurrer is well taken.
[Citations.]’ [Citation.] However, it is error for a trial court to
sustain a demurrer when the plaintiff has stated a cause of action under any
possible legal theory. [Citation.] And it is an abuse of discretion to sustain a
demurrer without leave to amend if the plaintiff shows there is a reasonable
possibility any defect identified by the defendant can be cured by
amendment. [Citation.]†(Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) The legal sufficiency of the complaint is
reviewed de novo. (Montclair Parkowners Assn. v. City of Montclair (1999) 76
Cal.App.4th 784, 790.)
II. Inverse condemnation
To state a cause of action for inverse condemnation, a landowner
must allege ownership of a valuable
property right, taking of property by a governmental entity, and damage to
property rights substantially caused by the governmental entity’s conduct. (Stoney
Creek Orchards v. State of California (1970) 12 Cal.App.3d 903, 906-907.)
In their second amended complaint,
plaintiffs allege that their reliance on the building permits issued by the
City created a “vested right†in their completed home at 909 Greentree Road,
and that the City’s revocation of the permits was a taking of property in
violation of the California and federal
Constitutions. These allegations
fail to state a cause of action for inverse condemnation because plaintiffs
cannot claim to have a legitimate property interest in the building permits or
in the home built pursuant to those permits, as neither conforms to the
mandatory requirements of the City’s zoning code. Plaintiffs’ inverse condemnation claims also
fail because the City’s revocation of the permits did not constitute a taking.
A. No legitimate property interest
Plaintiffs do not have a legitimate property interest in
the invalidated building permits or in the home built pursuant to those
permits. The court in
permits were invalid and the home built pursuant to those permits was in
violation of the City’s mandatory zoning ordinance. That determination
precludes plaintiffs from claiming a vested property interest in the building
permits and in their nonconforming home under the
precludes relitigation of an issue identical to that argued and decided in a
prior proceeding. (Mycogen Corp. v.
Monsanto Co. (2002) 28 Cal.4th 888, 896.)
Plaintiffs argue that collateral
estoppel does not bar their inverse condemnation claim because the issues that
were decided in Horwitz I are not
identical to the issues presented here.
Their argument over-simplifies the collateral estoppel analysis. Under the doctrine of collateral estoppel
“[t]he ‘identical issue’ requirement addresses whether ‘identical factual
allegations’ are at stake in the two proceedings, not whether the ultimate
issues or dispositions are the same.
[Citation.]†(
Cal.3d 335, 342.)
Here, the factual allegations upon
which plaintiffs’ claims are premised are identical to those upon which the
court’s ruling in Horwitz I was
based.
Plaintiffs’ inverse condemnation claim is premised on the alleged
right to build their home in accordance with the building permits issued by the
City. That same right was at stake in
the permits were invalid because the City lacked authority to issue permits for
construction that did not conform to the mandatory requirements of the City’s
zoning ordinance. (Horwitz I, supra, 124 Cal.App.4th at p. 1356.) The court in Horwitz I further concluded that plaintiffs’ house, built in
violation of the municipal code, “must conform to the mandatory requirements of
the zoning ordinance.†(
have a legitimate property right in either the building permits or the home
because neither complies with the applicable zoning requirements.
Plaintiffs cite Anderson
v. City of La Mesa (1981) 118 Cal.App.3d 657 (Anderson) as support for
their argument that construction of their home in reliance on the building
permits created a vested right in the completed home. In Anderson,
the court found that a homeowner’s construction of her home in good faith
reliance on a building permit issued by the city conferred a vested property
right in the completed home. (
however, is distinguishable from the instant case in several significant
respects.
Anderson concerned
a homeowner’s petition for writ of mandate -- the procedural posture of
plaintiffs’ previous case in Horwitz I. Significantly, the building permit issued to
the homeowner in Anderson complied
with a city zoning ordinance requiring homes to be set back at least five feet
from the side lot line. As allowed under
both the permit and the ordinance, the homeowner built the house seven feet
from the side lot line. (
659.) The city inspected the house
several times during construction, but refused to issue a final certificate of
occupancy upon completion, citing a specific plan ordinance requiring the house
to be set back at least 10 feet from the side lot line. (Ibid.) The court in Anderson affirmed an order requiring the city to issue a variance
and an occupancy permit, concluding the city was equitably estopped from
enforcing the 10-foot setback requirement because the house built in accordance
with the permit did not violate the city’s standard zoning ordinances, and
because there was no evidence that granting a variance would cause any hardship
on any other persons. (
In contrast, the building permits in the instant case
were issued in violation of the City’s zoning ordinance. (Horwitz
I, supra, 124 Cal.App.4th at p. 1356.)
That violation, resulting in a 14-foot encroachment by plaintiffs’ home
into the setback area, was caused by plaintiffs’ erroneous calculation of the
setback when submitting their permit applications. (Id. at
pp. 1347, 1349, 1355, fn. 5.) Because
plaintiffs’ mistake resulted in the issuance of the nonconforming permits, the
court in Horwitz I concluded that
plaintiffs rather than their neighbors should bear the burden of that mistake
and ordered the City to revoke the building permits and certificate of
occupancy issued in violation of the zoning code. (Id. at
pp. 1355, fn. 5; 1356.)
Anderson is
thus distinguishable from the instant case, and we are not persuaded by
plaintiffs’ argument that it compels a different result. There is ample case authority to support the conclusion that plaintiffs had no property right to build their home in violation
of the City’s zoning code. (
Contra Costa (2008) 165 Cal.App.4th 249, 267 (Golden Gate) [landowner never had a property right to develop land
in violation of county land use requirements]; see also Pettitt v. City of Fresno (1973) 34 Cal.App.3d 813, 824 (
permit invalid at issuance because it was in violation of existing zoning law];
Millbrae, supra, 262 Cal.App.2d at p.
246 [no vested property right in permit which was invalid when issued because
it violated the zoning ordinance].)
Plaintiffs failed to allege facts demonstrating that they
had a legitimate property interest in the building permits issued in violation
of the City’s zoning code or in the nonconforming home built pursuant to those
permits. The trial court accordingly did
not err by sustaining the demurrer to the cause of action for inverse
condemnation.
B. No taking by the City
An independent basis for sustaining the demurrer to
plaintiffs’ inverse condemnation claims is that the second amended complaint
fails to allege facts sufficient to support the conclusion that the City’s
revocation of the permits resulted in a taking.
“‘“Regulations regarding and restrictions upon the use of property in an
exercise of the police power for an authorized purpose, do not constitute the
taking of property without compensation or give rise to constitutional cause
for complaint.â€â€™ [Citation.]†(West
Washington Properties, LLC v. Department of Transportation (2012) 210
Cal.App.4th 1136, 1150 (West Washington).)
Whether a claimant who has unsuccessfully opposed a
governmental abatement action in a mandamus proceeding may still be entitled to
compensation for inverse condemnation on the theory that the abatement order
has resulted in a taking is an issue that was addressed in West Washington and in Golden
Gate.
title="">[1] In Golden Gate, a property owner purchased a five-acre island in an
area of Contra Costa County that had been designated as “open space†in the
county’s general plan. (
p. 253.) Without obtaining any land use
or related permits, the owner built several cabins, decks, docks, and related
structures. (Id. at p. 254.) The county issued
an order to abate a public nuisance by demolishing and removing all structures
from the island, the owner appealed the order with the county board of
supervisors, and the board affirmed the order.
The owner then petitioned the superior court for an administrative writ
of mandate seeking to set aside the order.
At the same time, the owner filed a complaint for inverse condemnation
and violation of civil rights, among
other claims. (Id. at pp. 254-255.)
The court in Golden
Gate held that the county was not equitably estopped from enforcing the
abatement order, noting that the county had never sanctioned the development by
issuing a land use permit to the owner and that the owner could not claim its
development was allowed by the county’s land use requirements. (Golden
Gate, supra, 165 Cal.App.4th at p. 256.)
The court also affirmed the order sustaining the county’s demurrer to
the owner’s inverse condemnation claim, reasoning as follows:
“The Club contends that even if the abatement order is affirmed,
it may still be entitled to compensation on its claim for inverse condemnation
on the theory the order has resulted in a taking. The flaw in this argument is that the complaint
did not allege facts sufficient to support the conclusion abatement would
result in a taking. ‘“Regulations
regarding and restrictions upon the use of property in an exercise of the
police power for an authorized purpose, do not constitute the taking of
property without compensation or give rise to constitutional cause for
complaint.â€â€™ [Citation.] . . . [¶]
The rule, albeit typically announced in a somewhat different context, is
that for a taking to occur, there must be an invasion or an appropriation of
some valuable property right which the landowner possesses. [Citation.]
The Club never had a property right to develop Golden Isle in violation
of the County’s land use requirements. . . .â€
(
The rule articulated in Golden Gate was applied by Division Seven of this court in
with an 8,000 square foot advertising “wallscape†filed a petition for
administrative mandamus and a complaint for inverse condemnation seeking to
prevent removal of the wallscape pursuant to a state abatement order, or
alternatively, to obtain compensation for its removal. The court in West Washington affirmed the order sustaining the state’s demurrer
to the inverse condemnation claim without leave to amend, citing
conclusion that no taking had occurred.
(West Washington, supra, 210
Cal.App.4th at pp. 1150-1151.) The court ruled that the state’s enforcement
action “was an exercise of police power for an authorized purpose and did not
constitute a taking.†(
The bright line rule articulated in Golden Gate and applied by the court in West Washington is a sound one.
Absent such a rule, every mandamus proceeding involving the enforcement
of zoning laws would be subject to constitutional scrutiny.
Plaintiffs argue that Golden
Gate and West Washington are
distinguishable from the instant case because the governmental entities
exercising their police powers in those cases had not issued a land use permit
or otherwise sanctioned the property owner’s conduct. They cite the Golden Gate court’s observation that the landowner in that case
“does not and cannot claim its development was allowed by the County’s land use
requirements at the time it purchased Golden Isle . . . or that the County ever
sanctioned its development by means of granting a land use permit or its
equivalent.†(Golden Gate, supra, 165 Cal.App.4th at p. 256.) Plaintiffs also cite the court’s statement in
West Washington that the property
owner in that case could not “claim it relied on any affirmative actions on the
part of Caltrans that negated its right to receive compensation it would
otherwise be owed.†(
at p. 1152.) The language cited by
plaintiffs, taken out of the context in which the courts in
The Golden Gate court’s
observation that the landowner in that case could not claim that the county had
sanctioned the development by granting a land use permit was made in the
context of assessing the landowner’s claim for equitable estoppel and not the
inverse condemnation claim. (
pp. 256-260.) Moreover, that observation
was made in order to contrast the landowner’s situation in Golden Gate with “numerous†other cases in which courts “refused to
apply the [equitable estoppel] doctrine against a governmental entity despite
substantial and reasonable reliance by the landowner on some act or dereliction
of the public entity.†(
not estopped from denying validity of building permit issued in violation of
zoning ordinance, despite landowner’s expenditure of substantial sums to
remodel a building in reliance on the permit]; Smith v. County of Santa Barbara (1992) 7 Cal.App.4th 770
[equitable estoppel not available to landowner that expended substantial sums
in reliance on a permit that did not conform to land use requirements].) Plaintiffs’ equitable estoppel claim was
adjudicated in Horwitz I and is not
at issue and cannot be revisited in this case.
The Golden Gate court’s
observations concerning the absence of a land use permit, made in the context
of adjudicating the landowner’s equitable estoppel claim, is not a valid basis
for distinguishing its inverse condemnation ruling.
Similarly, the court’s statement in West Washington that the property owner in that case had never
attempted to seek a permit and could not claim to have relied on any affirmative
actions by Caltrans must be considered in the context in which the statement
was made. That context was a comparison
of the property owner’s circumstances in West
Washington with those presented in People
ex rel. Dept. of Pub. Works v. Ryan Outdoor Advertising, Inc. (1974) 39
Cal.App.3d 804 (Ryan).
In Ryan, a
billboard owner moved its billboards at the direction of the Department of
Public Works for a highway widening project.
The department then issued permits for the billboards in their new location,
but later determined that the signs violated the Outdoor Advertising Act. Had the signs remained in their original
location, the department would have been required by statute to pay just
compensation for their removal. The
court in Ryan noted that “the
Department ordered Ryan to clear the right-of-way, and in reliance thereon,
Ryan removed the billboards and placed them outside the right-of-way line. . .
. [T]he fact that the movement of the
billboards was an involuntary displacement resulting from the Department’s
road-widening activities may be sufficient to justify the application of the
doctrine of equitable estoppel.†(
814.) The court in Ryan ultimately declined to apply equitable estoppel to prevent
removal of the unlawful billboards because it would nullify an important public
policy. The Ryan court observed, however, that it would not violate a strong
public policy to require the department to pay just compensation upon removal
of the billboards. (Id. at p. 813.) After noting
that the Ryan court’s statements
regarding inverse condemnation were dicta because no inverse condemnation issue
had been presented in that case, the court in West Washington then proceeded to distinguish Ryan. The
signs at issue in Ryan had initially
been in compliance with state laws and only became unlawful following their
relocation at the department’s request, and that the facts before it were
“markedly different.†(
at p. 1152.)
The instant case is also markedly different from
It was plaintiffs’ erroneous calculation of the setback, and not any
affirmative action by the City, that resulted in the issuance of the
nonconforming building permits. (
1347, 1355 & fn. 5.) Plaintiffs’
renovated home was never in compliance with the applicable setback
requirements. Under these circumstances,
there is no strong public policy to provide compensation to plaintiffs for the
cost of bringing their nonconforming home into compliance with the zoning code.
Plaintiffs did not allege facts sufficient to establish
that the City’s revocation of the improperly issued building permits
constituted a taking. Their causes of action
for inverse condemnation and inverse condemnation by judicial action fail for
this reason, and the trial court did not err by sustaining the demurrer as to
these causes of action.
III. Civil rights claim
Plaintiffs concede that in order to state a section 1983
cause of action premised on a violation of procedural or substantive due
process, they must allege a protected, or vested property right. (Clark
v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1180, 1183-1184.) Plaintiffs cannot allege a vested property
right in the revoked building permits or in the nonconforming home built
pursuant to those permits. They are
precluded from doing so by the court’s conclusion in Horwitz I that the building permits issued were invalid and the
home built pursuant to those permits was in violation of the City’s zoning
ordinance. (Pettitt, supra, 34 Cal.App.3d at p. 824 [no vested right in
building permit invalid at issuance because it was in violation of existing
zoning law]; Millbrae, supra, 262
Cal.App.2d at p. 246 [no vested property right in permit which was invalid when
issued because it violated the zoning ordinance]; Golden Gate, supra, 165 Cal.App.4th at p. 267 [no property right to
develop land in violation of county land use requirements].) The trial court did not err by sustaining the
demurrer to plaintiffs’ section 1983 cause of action.
IV. Denial of leave to
amend
Plaintiffs fail to suggest
how they would amend their second amended complaint to correct the defects
noted above. The burden of proving a
reasonable possibility of amending the complaint to state a cause of action “is
squarely on the plaintiff.†(
discretion by sustaining the demurrer without leave to amend.
DISPOSITION
The judgment is
affirmed. The City is awarded its costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
CHAVEZ
We concur:
______________________________,
P. J.
BOREN
______________________________,
J.
ASHMANN-GERST
requested supplemental briefing by the parties as to whether the second amended
complaint alleged facts sufficient to support the conclusion that the City’s
actions resulted in a taking in light of the courts’ holdings in
