Case Number: BS173012    Hearing Date: July 12, 2018    Dept: 85

James Samatas v. City of Los Angeles, et al., BS 173012

Tentative decision on demurrer:  sustained in part and overruled in part

Real Parties Tanager, NK, LLC, and 1410 Tanager, LLC (collectively, “Tanager”), and Respondents City of Los Angeles (“City”), Central Los Angeles Area Planning Commission (“APC”), and City Board of Building and Safety Commissioners (“Board”) (collectively, “City”) demur to the Petition filed by Petitioner James Samatas (“Samatas”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

  1. Statement of the Case

Petitioner Samatas commenced this proceeding on March 29, 2018.  The verified Petition alleges in pertinent part as follows.

The action concerns the ongoing construction of a 13,755 square-foot hillside residence (“Project”) by developer Tanager at 1410 Tanager Way in the City of Los Angeles (“Property”).  The Property was previously improved with a 2,368 square foot single family home (“Prior Home”).  Samatas owns real property adjacent to the Property.

The principal component of the Project is the residential building in which the approximately 13,755 square feet of habitable space and other enclosed areas would be located.  Another component of the Project is the three large retaining walls that were constructed downslope from the residential building.  Between the residential building and the retaining walls is a backyard area that consists of multiple swimming pools and related recreational decks (“Backyard Improvements”).

In April 2015, the Los Angeles Department of Building and Safety (“LADBS”) issued five building permits for the Project, including one for the construction of a single-family dwelling with attached garage, one for the grading associated with the construction, and one for a new retaining wall.  LADBS issued the grading permit after Tanager submitted a permit informing LADBS that Project grading would include only 687 cubic yards of non-exempt grading quantities.  LADBS issued the retaining wall permit to authorize the construction of one retaining wall, ten feet in height and approximately 29 feet in length.

In August 2015, Tanager demolished the Prior Home.  In the first part of 2016, following the demolition, Tanager proceeded with Project shoring and grading and construction of the retaining walls.  Based on his personal observations, Samatas was concerned that the activities were non-compliant with the grading and retaining wall permits.   In pertinent part, the Los Angeles Municipal Code (“LAMC”) authorizes a maximum grading of 1,600 cubic yards for the Project, and the LAMC only allows for construction of one retaining wall 12 feet in height.

On September 9, 2016, Samatas submitted an appeal to LADBS for challenging issuance of the grading and retaining wall permits.

LADBS initially concluded that (1) the Project’s non-exempt grading exceeded the maximum grading quantity allowed for the Project and (2) that the Project improperly possessed more than one retaining wall greater than 20 feet.  On September 23, 2016, LADBS prepared a draft letter to provide notice of its intent (“NOI”) to stop construction of the Project and revoke the building permits.  The NOI was not issued.  Instead, LADBS met with Tanager and its consultants and they agreed that (1) Tanager would submit a new grading plan to LADBS and (2) the Project actually only possessed one retaining wall as defined by the LAMC because the other three walls supported part of the residence and therefore were part of the building.  Tanager submitted the new grading plan around November 7, 2016.  The grading plan included a grading quantities sheet prepared by LC Engineering which stated that the “corrected” grading quantity for the Project was 1,333 cubic yards, nearly double the 687 cubic yards claimed in the original plans.   Tanager acknowledged that the increase was due to intentional omissions of non-exempt grading quantities.

On January 24, 2017, LADBS issued a written determination concluding that it had not erred or abused its discretion in issuing the building permits.  Its analysis was conclusory and unpersuasive.  LADBS ignored the definitions of “retaining wall” and “building” in the LAMC and merely restated the grading information provided by Tanager’s consultants without critically reviewing it.

On February 2, 2017, Samatas timely appealed the LADBS determination to the Director of Planning (“Director”).  Samatas raised the same two issues.  In connection with the appeal, Samatas retained EDG to analyze the LC Engineering grading quantities sheet.  EDG demonstrated that the grading documents submitted by Tanager were grossly inaccurate and that the Project’s grading quantities significantly exceeded the LAMC’s cap of 1,600 cubic yards.  Samatas also retained Structural Focus, a structural engineering firm, to produce a technical report.  The technical report demonstrated that the three walls were indeed retaining walls as defined by the LAMC.

On August 4, 2017, Jack Chiang (“Chiang”), on behalf of the Director, informed Samatas that he would hear the portion of the Director Appeal relating to the retaining wall issue but had dismissed the appeal with respect to the grading quantities issue.

On August 31, 2017, Chiang conducted a public hearing on the appeal for the retaining wall issue.  Chiang subsequently issued a written determination on behalf of the Director denying the appeal.

On August 15, 2017, Samatas refiled an appeal with Board with respect to its grading quantities claim.  On January 9, 2018, the Board conducted a public hearing on the appeal.  The Board voted 5-0 to deny the appeal.  The Board issued a written determination summarily stating that it determined that LADBS had not erred or abused its discretion in issuing the building permits.

On November 13, 2017, Samatas filed an appeal to the APC with respect to the retaining walls claim.  On January 23, 2018, the APC conducted a public hearing and at the conclusion of the hearing, voted 3-0 to deny the appeal.

The Petition’s first cause of action for mandamus concerns the retaining walls.  Samatas contends that the three walls in dispute are “retaining walls” as defined by the LAMC, and the number and height of the retaining walls violates the LAMC.

The second cause of action for mandamus concerns grading quantity.  Samatas alleges that the grading for the Project exceed the maximum permissible non-exempt grading quantity of 1,600 cubic yards set forth by the LAMC.

The third cause of action for mandamus concerns residential floor area (“RFA”).  The maximum RFA of the Project is approximately 5,036 square feet.  According to Tanager, the current RFA of the Project, excluding the Backyard Improvements, is 4,894 square feet. Samatas alleges that the Backyard Improvements square footage must be included in the calculation of the Project’s RFA because the Director and APC both concluded that these improvements are part of the residential building.  Once included, the Project’s RFA increases to 11,000 square feet, far in excess of the maximum RFA allowable.

The fourth cause of action for mandamus also concerns RFA. Samatas alleges that if the retaining walls are considered the exterior basement walls of the residential building, as the Director and APAC both concluded, then the 7,450 square-foot basement previously excluded from the Project’s RFA must be included in that calculation.  If included, the Project’s total RFA area increases to almost 12,500 square feet, far in excess of the maximum RFA allowable.

  1. Applicable Law

Demurrers are permitted in administrative mandate proceedings.  CCP §§1108, 1109.  A demurrer tests the legal sufficiency of the pleading alone and will be sustained where the pleading is defective on its face.

Where pleadings are defective, a party may raise the defect by way of a demurrer or motion to strike or by motion for judgment on the pleadings.  CCP §430.30(a); Coyne v. Krempels, (1950) 36 Cal.2d 257.  The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer to the pleading.  CCP §430.10.  A demurrer is timely filed within the 30-day period after service of the complaint.  CCP § 430.40; Skrbina v. Fleming Companies, (1996) 45 Cal.App.4th 1353, 1364.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36.  CCP §430.10.  Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.

The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay.  Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief. Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339.  The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court.  Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47.  The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged.  Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403.  Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.  Vance v. Villa Park Mobilehome Estates, (1995) 36 Cal.App.4th 698, 709.

For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  CCP §430.41(a).  As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies.  Id.  The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.  Id.  The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met.  CCP §430.41(a)(3).

  1. Analysis[1]

Respondent City and Real Parties jointly demur to all causes of action in the Petition on the ground of res judicata.  The City and Real Parties have complied with the meet and confer requirement by discussing with Samatas the arguments presented in the demurrer. Freedman Decl.; Tobkin Decl.

  1. TheRes Judicata Doctrine

Res judicata, also known as claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.  Mycogen Corp. v. Monsanto Co., (“Mycogen”) (2002) 28 Cal.4th 888, 896.  Res judicata serves to prevent inconsistent rulings, promote judicial economy by preventing repetitive litigation, and protect against vexatious litigation. Federation of Hillside and Canyon Associations v. City of Los Angeles, (“Federation”) (2004) 126 Cal.App.4th 1180, 1205.  A judgment on the merits in a mandamus proceeding is res judicata and is conclusive on all issues that were raised or could have been raised in the prior proceeding.  Id. at 1205.  Res judicata applies if (1) the decision in the prior proceeding is final and on the merits, (2) the present proceeding is on the same cause of action as the prior proceeding, and (3) the parties in the present proceeding (or parties in privity with them) were parties to the prior proceeding.  Id. at 1202.

A demurrer based on res judicata is properly sustained only if the pleadings and judicially noticed facts conclusively establish the elements of the doctrine.  Planning & Conservation League v. Castaic Lake Water Agency, (“Castaic”) (2009) 180 Cal. App. 4th 210, 231.

Samatas does not dispute that the first and third elements of the doctrine are met.  This court issued a final decision on the merits inSamatas I, and that proceeding was between the same parties.  Samatas raises multiple arguments disputing the second element of res judicata that the two cases involve the same cause of action.

  1. The Same Cause of Action

A “cause of action” is comprised of a “primary right” of the plaintiff, a corresponding “primary duty” of the defendant, and a wrongful act by the defendant constituting a breach of that duty.  Crowley v. Katleman, (1994) 8 Cal.4th 666, 681.  California law identifies a single cause of action as the violation of a single primary right.  Castaicsupra, 180 Cal. App. at 227.  Accordingly, two proceedings are the same if they are based on the same “primary right.”  Federationsupra, 126 Cal.App.4th at 1202.  The plaintiff’s primary right is the right to be free from a particular injury suffered, regardless of the legal theory on which liability for the injury is based.  Id. at 1202.  The scope of the primary right therefore depends on how the injury is defined.  Id.  An injury is defined in part by reference to the set of facts, or transaction, from which the injury arose.  Id. at 1203.

In Samatas I, Samatas presented two theories why LADBS unlawfully issued the Building Permits.  City RJN Ex. A, ¶15.  Samatas alleged that LADBS improperly issued the permits due to Tanager’s overstatement of the maximum RFA for portions of the new residence above the basement.  City RJN Ex. A ¶¶ 8, 15.  Samatas explained that Tanager incorrectly assumed a flat grade below the Prior Home in its slope band analysis when in fact the actual slope under the Prior Home was quite steep.  Id.  Second, Samatas alleged that LADBS violated a LAMC provision requiring the Director’s approval of a private street map with respect to any private road easement that is contiguous or adjacent to a building site prior to the issuance of any building permit relating to that building site.  City RJN Ex. A, ¶¶ 4, 15.[2]

In its decision on the slope band claim in Samatas I, the court examined building plans, the slope band analysis documentation, photographs of the residence before and during demolition, the input of Samatas’ real estate expert “Gray,” sheet A403s, and several letters and testimony from surveyors and civil engineers.  RJN Ex. B pp. 17-19.  To assess the private street map claim, the court mostly relied upon the recorded easement agreement and examined relevant law as the claim was largely legal in nature.  RJN Ex. B, pp. 23-25.

Samatas contends that Samatas I and the present suit involve different causes of action.  Opp. at 10.  Samatas relies principally on Pitts v. City of Sacramento, (“Pitts”) (2006) 138 Cal.App.4th 853.  Opp. at 11. Pursuant to the Pitts decision’s formulation of primary right, Samatas contends that his claims in Samatas I relied upon evidence that has no bearing on the claims asserted in the present suit.  Opp. at 12.

In Pitts, the plaintiff requested that the defendant city return her to active status as a police officer after she was ruled ineligible for disability retirement.  138 Cal.App.4th at 855.  The city informed her that it would return her to active status if she satisfied several conditions.  Id.  Plaintiff refused and filed a petition for traditional mandamus to compel the city to return her to active status unconditionally.  Id.  The trial court issued a judgment denying her petition.  Id.

After the trial court’s ruling, plaintiff’s attorney sent the city a letter asserting that she agreed to the conditions for reinstatement.  Id. at 855.  The city notified her that the refusal to accept the conditions earlier amounted to a failure to return work and it denied her request for reinstatement.  Id.  Plaintiff filed a second petition for a writ of traditional mandamus.  Id.  The city demurred on the ground of res judicata.  Id.  The trial court sustained the demurrer without leave to amend, concluding that the previous proceeding involved the same primary right as the second proceeding.  Id.

The Pitts court reversed the trial court decision, holding that “the two petitions involve different underlying evidentiary foci, and thus the reciprocal duty breached in each is different.”  Id. at 856.  This holding in part was predicated on a Witkin treatise cited by the Pittscourt: “[T]he defendant must show that the parties, cause of action, and issues are identical, and that the same evidence would support the judgment in each case.”  Id. (quoting 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, §924, p. 383).  The court explained that the two petitions fundamentally involved different duties and different evidence.  Id. at 857.  The court reasoned that the primary right in the second petition was the defendant’s duty to respond to plaintiff’s belated acceptance of the conditions after litigation over its legality, whereas the primary right in the former petition was whether defendant could impose any condition on her return to active status for the purpose of a discretionary evaluation of her fitness for duty.  Id. at 856-57.  The court noted that plaintiff’s second petition relied on acts postdating the ruling in the first case.  Id.

As Respondents and Real Parties point out (Reply a 3), Pitts is not particularly relevant.  The plaintiff in Pitts sought mandamus for reinstatement to a police officer position in the first case without any conditions and sought mandamus to compel the city’s acceptance of an offer for reinstatement with conditions in the second case.  138 Cal.App.4th at 855.  The primary right in the first case was the nature of the conditions the city could properly impose on the plaintiff.  Id. at 857.  The primary right in the second case concerned the city’s duty with respect to the petitioner’s belated acceptance of its offer.  Id.  The second case concerned facts arising after the ruling in the first.  Id.  Pitts was not a land use case and the primary rights at issue are not germane.  Moreover, the discovery of new evidence does not affect the primary rights analysis unless it affects the nature of the “facts, or transaction, from which the injury arose.” Federationsupra, 126 Cal.App.4th at 1203.

A “primary right” is “the plaintiff’s right to be free from the particular injury suffered.”  Mycogensupra, 28 Cal.4th at 904 (quotingCrowley v. Katleman, (1994) 8 Cal.4th 666, 681-82).  Respondents and Real Parties contend that Samatas’ primary right is his right to the quiet enjoyment of his property, free from Tanager’s construction on his Property in a manner that violates zoning laws, building codes, and other applicable laws.  Dem. at 14; Reply atn, n.1.  The court agrees with Samatas that Samatas contends that this formulation is both vague and overbroad.  See Opp. at 11.  This is a mandamus case, and the primary right must focus on the harm suffered from the City’s alleged error in issuing the Building Permits.  Compare Federationsupra, 126 Cal.App.4th at 1188, 1204 (primary right was the right to ensure city’s compliance with CEQA in its EIR for city’s General Plan Framework of policies, objectives, and goals in its general plan).

Thus, Samatas’ primary right is his right to be free from the City’s issuance of Building Permits for the Project that do not comply with its zoning laws, building codes, and other applicable laws so that the Project does not interfere with Samatas’ quiet enjoyment of his property.  The primary duty is the City’s duty to issue permits for the Project that are compliant with the law, and the City’s breach of that duty is the issuance of non-compliant permits.  The primary harm is the construction of the Project with non-compliant permits that interferes with Samatas’ quiet enjoyment of his property.[3]

  1. Prevailing in Prior Action

            Samatas argues that res judicata does not apply because he prevailed in Samatas I.  Opp. at 13.  Samatas cites City of Santa Paula v. Narula, (2003) 114 Cal.App.4th 485, 490, which provides: “The doctrines of res judicata and collateral estoppel prevent a losing party from relitigating causes of action or issues against the prevailing party after a final judgment.”

            Samatas’ argument is unsound.  His cited proposition does not address the converse: whether res judicata can prevent a prevailing party from religiating causes of action.  Indeed, it does.  There is no reason why res judicata should not prevent a plaintiff from splitting a cause of action into two different lawsuits simply because he or she prevailed in the first suit.  Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause of action is merged into the judgment and may not be asserted in a subsequent lawsuit.  Mycogensupra, 28 Cal.4th at 896.[4]

            Res judicata applies to bar a prevailing plaintiff from splitting his or her cause of action by filing a second lawsuit on the same primary right.

  1. Due Diligence

Samatas argues that his claims in this lawsuit were not reasonably discoverable until after Samatas I.  Opp. at 16.

Res judicata serves as a bar to all causes of action that were litigated or that could have been litigated in the first action.”  Allied Fire Protection v. Diede Const., Inc., (“Allied Fire”) (2005) 127 Cal.App.4th 150, 155.  “’If the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact it was not in fact expressly pleaded or otherwise urged.’”  Franceschi v. Franchise Tax Board, (2016) 1 Cal.App.5th 247, 259 (citation omitted).  A party cannot by negligence or design withhold issues and litigate them in consecutive actions.  Id.  Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised.  Id.  A cause of action could have been raised in the prior action if with diligence it could have been brought earlier.  Allied Firesupra, 127 Cal.App.4th at 156.[5]

The res judicata determination is made as of the date the first complaint is filed.  Allied Firesupra, 127 Cal.App.4th at 155.  As a result, res judicata is not a bar to claims that arise after the initial complaint is filed.  These rights may be asserted in a supplemental pleading, but the plaintiff is not required to do so.  Id. The use of the date of filing the original complaint as the cut-off for determining what claims could be brought results in a workable rule; otherwise, courts would get bogged down in determining whether an amendment based on a new claim was possible or practicable.  Id.

            As an initial matter, the parties disagree over who carries the burden of proof on this issue.  Opp. at 16; Reply at 6-7. Respondents and Real Parties contend that they have the burden to establish the elements of res judicata, and Samatas bears the burden of showing an exception to the doctrine.  Specifically, they contend that he must show that he could not have raised the legal theories concerning the retaining walls and grading when Samatas I was filed.  Reply at 6-7.  This contention is unconvincing.  The party asserting res judicata bears the burden of proving its application.  See Dunkin v. Boskey, (2000) 82 Cal.App.4th 171, 181.  To apply res judicata, Respondents and Real Parties must show that the claims in this lawsuit could reasonably have been discovered and presented when Samatas I was filed.

The Petition states that administrative exhaustion of the issues in this case took over one year.  Pet. ¶46, 124.  The court agrees with the City and Real Parties that the fact that Samatas pursued multiple and separate administrative appeals has no bearing on the res judicataanalysis.  Samatas’ primary right is his right to be free from the City’s issuance of Building Permits for the Project that do not comply with the law, and his choices of what to challenge and the City’s procedures for challenging them do not bear on this right.  If the appeal results differed in timing, Samatas was obligated to seek a remedy either before the City or the court.  As the City and Real Parties argue, he could have pursued a single administrative appeal.  Dem. At 14.  Or he could have filed Samatas I and sought a stay until the remaining claims were ripe.  But he would not be entitled to split a cause of action based on the timing of his different administrative appeals.

The question becomes whether Samatas’ assertion is persuasive.  Leaving out the various irrelevant administrative proceedings, Samatas’ opposition notes the following pertinent facts.  Opp. at 6-10, 17-18.

The Building Permits were issued in April 2015.  Pet. ¶¶ 24, 35-36.  LADBS issued supplemental Building Permits in September/November 2015, including a supplemental grading permit for 687 cubic yards of non-exempt grading.  Pet. ¶¶ 38, 40.

In the first part of 2016, Real Parties constructed three large retaining walls.  Pet. ¶¶ 3, 41.  Samatas had no knowledge of issues concerning the retaining walls and grading until early 2016 when he viewed their construction.  Pet. ¶¶ 41-43, Ex. 1.  At that time, he became concerned that the retaining walls and grading did not comply with zoning requirements.  Pet. ¶42.  The walls exceeded the maximum 12-foot limit of the LAMC and the retaining walls and one approved wall added up to four retaining walls where the LAMC only allowed one.  Pet. ¶44.

In order to confirm that the Project violated zoning laws, Samatas retained experts, who confirmed that the retaining walls were not structurally integrated with the residence and the grading quantities exceeded applicable limits.  Pet. ¶¶ 42-46.  Neither Samatas nor anyone else could know if Real Parties’ claimed grading quantity of 687 cubic yards was accurate simply by looking at the grading quantities table.  Samatas had to retain a construction expert to model the non-exempt grading quantities.  Pet. ¶¶ 16, 45-49.  Similarly, he could not tell if the retaining walls were intended to hold back dirt, and were not structurally integrated with the residential building, until they were constructed.  At that point, expert analysis was necessary to confirm the lack of structural integration.  Pet. ¶44.

Samatas commenced Samatas I on August 16, 2016.  City RJN Ex. A, p.1.  On September 9, 2016, Samatas filed an administrative appeal with LADBS concerning the grading quantities and retaining walls.  Pet. ¶¶ 46-49, 35.  LADBS agreed with Samatas on the grading issue, but ultimately allowed Real Parties to submit a new grading plan with corrected grading quantities and issued a second supplement to the Grading Permit on November 22, 2016 permitting 1333 cubic yards of grading.  Pet. ¶¶ 56-65.

It is obvious from these facts that Samatas is foreclosed from presenting the retaining wall claims by res judicata.  He clearly had reason to believe that the retaining walls were non-compliant with the LAMC in height and number in early 2016, and his experts agreed long before he filed Samatas I.  Samatas could have presented the retaining wall claims in the exercise of due diligence.

The grading issue is different.  Samatas had concerns about grading also in early 2016.  But his initial challenge was accepted by LADBS, which prepared a draft letter to stop construction on September 23, 2016.  Pet. ¶50.  After meeting with Real Parties, LADBS’ plan checker informed Samatas’ counsel that Real Parties would submit a new grading plan, and one was submitted correcting the grading quantities to 1333 cubic yards.  Pet. ¶¶ 56, 60.  On November 22, 2016, LADBS issued a supplemental building permit to revise the site grading.  Pet. ¶65.  It is this supplemental permit that is challenged by Samatas.  Pet. ¶138.  As such, it is not a claim that could have been raised in Samatas I.

Finally, the third and fourth causes of action concern RFA, the former arguing that square footage from the Backyard Improvements must be included and the latter arguing that square footage of the exterior basement walls of the residential building must be included. Both claims are based on the Project’s design plans.  As the City and Real Parties argue, Samatas attached the Project plans throughout his administrative appeals.  City RJN Exs. G, H, I, J.  Dem. at 14, n.2.  Therefore, he had the ability to evaluate and argue his RFA claims when he filed Samatas I on august 16, 2016.  He does not argue otherwise.  See Opp. at 18 (arguing only that he needed experts to verify his grading quantities and retaining wall claims).

  1. Conclusion

The City’s and Real Parties’ demurrer is sustained as to the first, third, and fourth causes of action, and is overruled for the second cause of action.  The parties have 30 days to answer only.

[1] The City and Real Parties ask the court to judicially notice various documents (Exs. A-J) filed or lodged in the previous mandamus lawsuit between the parties, Samatas v. City of Los Angeles, (“Samatas I”) Case No. BS164400.  The request is granted.  Evid. Code §452(d).  Although the administrative record was only lodged in Samatas I, it was received into evidence.  See Jefferson Street Ventures, LLC v. City of Indio, (2015) 236 Cal.App.4th 1175, 1190 (judicial notice of trial court administrative record excerpts).

[2] As explained in the Samatas I petition, the Property is encumbered by a private road easement that is contiguous and adjacent to the building site for the new residence.  RJN Ex. A, ¶3.  The easement provides vehicular and related pedestrian access to a parcel of land surrounding the Property.  Id.

[3] Samatas cites Mata v. City of Los Angeles, (“Mata”) (1993) 20 Cal.App.4th 141, 149, for the proposition that mandamus is a “special proceeding” for which res judicata would not apply to bar a subsequent civil action.  Opp. at 14.  Mata was distinguished inFederationsupra, 126 Cal.App.4th at 1204-05, as a case in which a police officer’s mandamus petition for reinstatement did not preclude a civil rights lawsuit under 42 U.S.C. section 1983 because the causes of action clearly differed.  Federation concluded that there is no reason to distinguish between civil actions and special proceedings (mandamus) for purposes of res judicata.  Ibid.  Samatas’ purported distinction of Federation as a case in which the petitioner lost on the first claim is unavailing to diminish the general principle that res judicata does apply to mandamus.  Additionally, this case concerns whether a mandamus judgment is res judicata for a second mandamus case, not whether a mandamus judgment is res judicata for a civil action as in Mata.

[4] The City and Real Parties also point out that Samatas lost on one of the claims in Samatas I.  Reply at 6.

[5] Samatas relies on Allied Fire to argue that the cause of action must accrue before the first action is filed, and the discovery rule applies to accrual of his claims.  See 127 Cal.App.4th at 155 (fraud claim in second suit did not accrue until discovery of facts sufficient to put plaintiff on inquiry).  Opp. at 15-16.  The City and Real Parties correctly distinguish Allied Fire as a fraud case to which the discovery rule applies. Reply at 7-8.  This is a mandamus case to which the discovery rule does not apply.  The mandamus cause of action accrued when the applicable permit was issued, and the issue is whether Samatas could have brought it earlier in the exercise of due diligence.

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