Motion to Strike Portions of Cross-Complaint (Judge Elaine Lu)

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Case Number: 20STCV11588    Hearing Date: February 13, 2024    Dept: 26

Superior Court of California
County of Los Angeles
Department 26

 

CITY OF LOS ANGELES,

Plaintiff,

v.

 

LANCE JAY ROBBINS PALOMA PARTNERSHIP; 7th STREET ASSOCIATES, INC.; LANCE JOY ROBBINS, et al.,

Defendants.

  

Case No.:  20STCV11588

 

Hearing Date:  February 13, 2024

 

[TENTATIVE] ORDER RE:

CROSS-DEFENDANT CITY OF LOS ANGELES’ MOTION TO STRIKE PORTIONS OF THE CROSS-COMPLAINT

 

Procedural Background

On March 20, 2020, Plaintiff City of Los Angeles (“City”) filed the instant action for violations of the Los Angeles Municipal Code (“LAMC”) and for public nuisance against Defendants Lance Jay Robbins Paloma Partnership (“LJRPP”), 7TH Street Associates, Inc., and Lance Jay Robbins (“Robbins”).

On June 24, 2020, City filed a First Amended Complaint against Defendants.  The first amended complaint asserted three causes of action for (1) Unauthorized Change of Use Violation in violation of LAMC §§ 11.00(l), 12.21.A.1(a), (2) Unauthorized Zone and Land Use Designation Violation in violation of LAMC §§ 11.00(l), 12.21.A.1(a), 12.09.1, and (3) Public Nuisance in violation of Civil Code §§ 3479 and 3480.

On August 28, 2020, the Court – presided by the Honorable Jon R. Takasugi – granted City’s request for a preliminary injunction prohibiting short term rental use of LJRRP’s Property 15 East Paloma Avenue, Venice until trial.  (Minute Order 8/28/20.)

On January 28, 2021, Robbins filed a preemptory challenge, and the action was reassigned to the Honorable Gregory W. Alarcon.  On January 26, 2022, the instant action was transferred to the Honorable Wendy Chang.  On February 8, 2022, LJRRP filed a preemptory challenge, which was granted.  Accordingly, the instant action was transferred to the current department.  (Minute Order 2/9/22.)

On October 31, 2022, the Court granted LJRRP, 7th Street Associates, Inc., and Robbins’ motion to dissolve the preliminary injunction based on change in law, namely, the Court of Appeal’s opinion in People v. Venice Suites, LLC (2021) 71 Cal.App.5th 715 (Venice Suites).  (Order 10/31/22.)  On November 2, 2022, the City filed a notice of appeal of the October 31, 2022 Order.

On November 4, 2022, LJRRP and 7th Street Associates, Inc. (jointly “Cross-Complainants”) filed a cross-complaint against City for declaratory relief.  On December 16, 2022, City filed the instant motion to strike portions of the cross-complaint.  On January 13, 2023, Cross-Complainants filed an opposition.  On January 27, 2023, City filed a reply.

On February 2, 2023, the Court granted City’s ex parte application to stay the instant action pending the City’s appeal of the October 31, 2022 Order and continued the instant motion to strike to July 13, 2023.  (Minute Order 2/2/23.)  On June 2, 2023, the Court continued the instant motion to strike to November 16, 2023.  (Minute Order 6/2/23.)  On August 15, 2023, the Court of Appeal affirmed the October 31, 2022 Order.  On October 10, 2023, the Court lifted the stay of the entire action.  (Minute Order 10/10/23.)

On October 20, 2023, the Court of Appeal issued the remittitur affirming the October 31, 2022 Order.  On November 9, 2023, City dismissed the complaint without prejudice.  On November 15, 2023, the parties filed a stipulation to continue the instant motion to strike due to the passing of Robbins and the uncertainty whether the cross-complaint would continue to be litigated.  Accordingly, the motion to strike was continued to January 3, 2024.  On January 3, 2024, the Court granted the parties’ stipulation to further continue the instant motion to strike to February 13, 2024 due to a medical emergency of Cross-Complainants’ Counsel.

 

Allegations of the Operative Cross-Complaint

The Cross-Complaint alleges that:

            LJRPP owns the real property located at 15 E. Paloma Ave., Los Angeles, California located in the Venice neighborhood (“the Ellison”).  (Cross-Complaint ¶ 1.)  7th St. Associates Inc. is the general partner of LJRPP.  (Id. ¶ 2.)

            “The Ellison was constructed in the City of Venice (prior to its consolidation with the City of Los Angeles) in or around 1913 as a multi-unit property.”  (Id. ¶ 7.)  “On or about July 1913, the Ellison obtained a license from the City of Venice to operate a hotel/apartment.”  (Id. ¶ 8.)  “For over 100 years, from 1913 to the present, the Ellison has rented units for all lengths of time, including rentals for 30 days or less and rentals for 31 days or more.”  (Id. ¶ 9.)

            Since 2015, the City “has improperly attempted to eliminate the Ellison’s rentals of 30 days or less, despite the fact that no law has prohibited it. Even if there was such a law that purported to prohibit rentals for 30 days or less at the Ellison (such as the City’s new Homesharing ordinance), Cross-Complainants nevertheless have the right continue operating rentals of 30 days or less pursuant to various laws including but not limited to the following.”  (Id. ¶ 10.)

            “Cross-Complainants have vested rights to continue operating apartment rentals of 30 days or less because the Ellison obtained a license from the City of Venice in 1913 to operate said rentals, and the owners of the Ellison performed substantial work and incurred substantial liabilities in reliance on said license, including building the Ellison itself. See Avco Community Developers, Inc. v. South Coast Regional Commission (1976) 17 Cal.3d 785. Said rentals have continued to the present since 1913, and the City has no right to interfere with said rights. See Goat Hill Tavern v. City a/Costa Mesa (1992) 6 Cal.App.4th 1519.”  (Id. ¶ 11.)

            “The California Historical Building Code allows historic properties to continue, or to revert back to, its historic use at any time. The Ellison is an historic property because it is listed on the national, state, and local registers of historical places as a historic property. As earlier alleged, the Ellison’s historic use included apartment rentals for 30 days or less and 31 days or more. Therefore, application of the California Historical Building Code means that Cross-Complainants have the right to continue, or revert back to, its historical use at any time. The City has no right to interfere with Cross-Complainants’ lawful use of the Ellison as protected in part by the California Historical Building Code.”  (Id. ¶ 12.)

            “The Government Code, and its predecessor statute, also protect Cross Complainants’ rights to continue operating apartment rentals for 30 days or less at the Ellison. Said laws provide that upon consolidation of two cities, laws and rights regarding land use rights and laws and rights regarding vested rights are not repealed even after the event of consolidation. As previously alleged, the Ellison was constructed in 1913 in the City of Venice. The City of Venice did not prohibit apartment rentals for 30 days or less. The City of Venice did not distinguish between apartment buildings and hotels in terms of lengths of occupancies. Also, the Ellison obtained a license from the City of Venice in 1913 to rent units for all lengths of time pursuant to the City of Venice land use laws. The City of Venice was consolidated into the City of Los Angeles in 1925. Upon said consolidation, the City of Venice’s laws regarding land use rights (such as those laws that do not prohibit apartment rentals of 30 days or less and those that [do] not distinguish apartment buildings and hotels) and regarding vested rights were not repealed, and in fact are applicable today, thereby providing the rights and authority for Cross-Complainants to operate apartment rentals for 30 days or less.”  (Id. ¶ 13.)

            “The recent Court of Appeal decision of People of the State of California v. Venice Suites LLC, et al. (2021) 71 Cal.App.5th 715 provides that apartment rentals for 30 days or less is an allowable use of an apartment building in the City of Los Angeles because no Los Angeles law provides length of occupancy limits. As previously alleged, the Ellison is a multi-unit rental building in the City of Los Angeles, and its legal uses include that of an apartment building. Therefore, apartment rentals for 30 days or less is an allowable use of the Ellison.”  (Id. ¶ 14.)

            “An actual controversy has arisen and now exists between Cross-Complainants and Cross-Defendant concerning their respective rights and duties in that Cross Complainants contend that they presently have the right to continue renting units at the Ellison for all lengths of time, including rentals for 30 days or less, whereas Cross-Defendant disputes this position and is trying to wrongfully eliminate Cross-Complainants’ aforementioned rights.”  (Id. ¶ 15.)  “Cross-Complainants desire a judicial determination as to their rights and duties in regard to the Ellison as alleged herein.”  (Id. ¶ 16.)

Request for Judicial Notice

            In conjunction with the moving papers, City requests that the Court take judicial notice of:

  1. October 1, 2020, Trial Court ruling in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, Los Angeles Superior Court Case No. 19STCP01937;
  2. West Los Angeles Area Planning June 13, 2019, Commission Letter of Determination, in Planning Case No. DIR-2018-3137-BSA-1A, of the Administrative Record in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, LASC Case No. 19STCP001937 (AR 2198- 2236)
  3. LJRPP’s commencement of LAMC §12.26K appeal with application to Los Angeles Department of Building and Safety, LADBS Case Number 180012- DCP, in the Administrative Record in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, LASC Case No. 19STCP001937 (AR58-67);
  4. LAMC § 12.26.K;
  5. Los Angeles Department of Building and Safety May 16, 2018, Determination in LADBS Case Number 180012-DCP and pages 4-11 in the Administrative Record in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, LASC Case No. 19STCP001937 (AR 4-11);
  6. LJRPP’s appeal from the LADBS May 16, 2018, determination to the Director of Planning, in Planning Case No. DIR-2018-3137-BSA-1A, in the Administrative Record in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, LASC Case No. 19STCP001937 (AR 95-106);
  7. Director Determination of January 3, 2019, in Planning Case No. DIR-2018-3137- BSA-1A, in the Administrative Record in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, LASC Case No. 19STCP001937 (AR 1480-1516);
  8. LJRPP’s Justification for Appeal from the Director’s January 3, 2019 Determination, in Planning Case No. DIR-2018-3137-BSA-1A, in the Administrative Record in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, LASC Case No. 19STCP001937 (AR1546-1566);
  9. Petition for Writs of Mandate in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, LASC Case No. 19STCP001937;
  10. First Amended Petition for Writs of Mandate in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, LASC Case No. 19STCP001937;
  11. LJRPP’s Opening Brief on Writ of Mandate in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, LASC Case No. 19STCP001937;
  12. LJRPP’s Request for Judicial Notice in support of Writ of Mandate in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, LASC Case No. 19STCP001937;
  13. City’s Respondent’s Brief in Opposition to Writ in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, LASC Case No. 19STCP001937;
  14. Request for Judicial Notice in Support of City’s Opposition in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, LASC Case No. 19STCP001937;
  15. LJRPP’s Reply Brief in Support of Writ in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, LASC Case No. 19STCP001937;
  16. LJRPP’s Notice of Appeal in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, LASC Case No. 19STCP001937;
  17. LJRPP’s Request for Dismissal of Appeal in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, Appellate Case No. B309372;
  18. Order of Dismissal in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, Appellate Case No. B309372; and
  19. Remittitur in Lance Jay Robbins Paloma Partnership v. City of Los Angeles, Appellate Case No. B309372.

As the Court may take judicial notice of court records and actions of the State, (See Evid. Code, § 452(c),(d)), City’s unopposed request for judicial notice is granted.  However, the Court does not take judicial notice of the truth of hearsay assertions within the judicially noticed documents. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Legal Standard

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.).  (See CCP §§ 435-437.)  A party may file a motion to strike in whole or in part within the time allowed to respond to a pleading, however, if a party serves and files a motion to strike without demurring to the complaint, the time to answer is extended.  (CCP §§ 435(b)(1), 435(c).)

A motion to strike lies only where the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws.  (CCP § 436.)  The grounds for moving to strike must appear on the face of the pleadings or by way of judicial notice.  (CCP § 437.)

Meet and Confer Requirement

Code of Civil Procedure section 435.5, subdivision (a) requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion to strike.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (Code Civ. Proc., § 435.5(a)(2).)  The moving party must also file and serve a declaration detailing the meet and confer efforts.  (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a motion to strike may be filed to the amended pleading.  (Id.¿at (a).)

            Here, City has sufficiently met and conferred.  (Brothers Decl. ¶ 2.)

Discussion

City contends that Cross-Complainants are collaterally estopped due to the Lance Jay Robbins Paloma Partnership v. City of Los Angeles, Los Angeles Superior Court Case No. 19STCP01937 (“Writ of Mandate Action”) from raising the claims in paragraphs 11-13 of the Cross-Complaint.

“Issue preclusion, … historically called collateral estoppel, describes the bar on relitigating issues that were argued and decided in the first suit.”  (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.)  “Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. [Citation.] Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action.”  (Ibid.)  “ ‘[I]ssue preclusion applies (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.’ [Citation.]”  (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 686.)

Here, factors (1) and (4) are clearly met.  The Writ of Mandate Action sought to vacate the City’s final administrative decision denying LJRPP’s application to correct the August 25, 1967 Certificate of Occupancy for the Ellison Apartments to be a “Hotel” rather than an “Apartment House” or alternatively interpret the 1967 Certificate of Occupancy to permit short term rentals.  (Request for Judicial Notice “RJN” Exh. 10 [First Amended Petition].)  The court in the Writ of Mandate action found in favor of the City and denied the petition for writ of mandate and the claim for declaratory relief.  (RJN Exh. 1 [Trial Court Ruling in Writ of Mandate Action].)  Further, the October 1, 2020 order in the Writ of Mandate action is clearly a final judgment because LJRPP did appeal but dismissed the appeal.  (RJN Exh. 16 [Notice of Appeal]; RJN Exh. 17 [LJRPP’s request for dismissal of the appeal]; RJN Exh. 18 [Order dismissing appeal]; RJN Exh. 19 [remittitur dismissing appeal].)  Moreover, no party disputes that LJRPP is in privity with all Defendants in the instant action.  However, the issues raised and actually litigated are not identical.

“For purposes of collateral estoppel, an issue was actually litigated in a prior proceeding if it was properly raised, submitted for determination, and determined in that proceeding.”  (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511.)  “The “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.’ [Citations.]”  (Id. at pp.511–512.)  “An issue decided in a prior proceeding establishes collateral estoppel even if some factual matters or legal theories that could have been presented with respect to that issue were not presented.”  (Bridgeford v. Pacific Health Corp. (2012) 202 Cal.App.4th 1034, 1042.)  “A prior decision does not establish collateral estoppel, however, on issues that could have been raised and decided in the prior proceeding but were not.”  (Id. at p.1043.)

Here, paragraph 11 raises the issue of whether Cross-Complainants have a vested right to maintain operating apartment rentals of 30 days or less because Ellison obtained a license in 1913 to operate said rentals and performed work in reliance on said license.  (Cross-Complaint ¶ 11.)  Paragraph 12 raises the issue that under the Historical Building Code, Cross-Complainants had a right to revert to historic use of apartment rentals of 30 days or less.  (Id. ¶ 12.)  Finally, paragraph 13 raises the issue that the City of Venice’s laws regarding land use rights and vesting rights were not repealed.  (Id. ¶ 13.)  Each of these issues involves whether Cross-Complainants can have under 30-day apartment rentals at the Ellison.  These issues were not necessarily litigated in the underlying Writ of Mandate Action.

In the instant action, the Court of Appeal noted that “[t]he issues raised and decided in the administrative appeal ultimately included determinations that the Ellison was an ‘apartment house’ not a ‘hotel,’ and that the Ellison was not permitted to host short-term rentals because it was in the RD1.5 11 zone. The determination about whether short-term rentals were a permissible use appears to have been made because throughout the administrative proceedings the LJRPP and the City conflated the concept of ‘hotel’ and ‘short-term rental.’”  (Remittitur for the instant action (20STCV11588) at pp.10-11.)  Thus, as the Court of Appeal has expressly noted, though the court in the Writ of Mandate proceeding did address the various claims for vested rights, (RJN Exh. 1 at pp.10-12), the court repeatedly conflated short-term rentals with hotel.  (RJN Exh. 1, at p.11, [“Petitioner’s other cited evidence of historic use of the Ellison – i.e. the Ph.D. thesis and historical advertisements – are not recorded evidence that Ellison has been used as a Hotel or for STRs. (AR 118, 353-362, 108-111.) In weighing the evidence, APC could reasonably give more weight to the building records than the Ph.D. thesis or historical advertisements. This is especially true where permits issued to prior owners, including the original owner, consistently referred to the property as an apartment house or building.”], [Italics and Bold Added].)  The court similarly conflated short-term rentals with hotels when discussing the applicability of the California Historical Building Code.  (RJN Exh. 1 at p.14, [“none of these documents identify Ellison as a historic hotel, as opposed to a historic apartment house, for purposes of the registers of historical places.”], [Italics and Bold Added].)

In fact, the court’s order in the Writ of Mandate action clearly notes that whether “apartment house” included short term rentals was not raised.  (RJN Exh. 1 [Trial Court Ruling in Writ of Mandate Action], [“It also appears Petitioner did not argue below that ‘apartment house’ should be interpreted to allow STRs.”].)

Some of the issues raised and litigated in the Writ of Mandate Action was whether LJRPP had a vested right under statutory law or common law to run the Ellison as a hotel and whether the Ellison historically operated as a hotel.  Paragraphs 11-13 in the Cross-Complaint do not raise these same issues, but rather concern whether Cross-Complainants have a vested right in running the Ellison with apartment rentals under 30 days, and whether the Ellison historically had apartment rentals under 30 days.  The mere fact that the ultimate disposition is the same is not dispositive for purposes of collateral estoppel.  (Lucido v. Superior Court (1990) 51 Cal.3d 335, 34,2 [“The ‘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.”].)  Here, the factual allegation has changed.  In the instant action, Cross-Complainants allege that they may continue to operate the subject property with less than 30 day rentals as an apartment – not as a hotel as previously alleged in the Writ of Mandate Action.  The issues are not identical.

Accordingly, City’s motion to strike is DENIED.

CONCLUSION AND ORDER

            Based on the foregoing, Cross-Defendant City of Los Angeles’ motion to strike portions of the cross-complaint is DENIED.  Cross-Defendant is to answer within 30 days.

            The case management conference is continued to April 3, 2024 at 8:30 am.

            Moving Party is to give notice and file proof of service of such.

DATED:  February ___, 2024                                                _____________________________

                                                                                                  Elaine Lu

                                                                                                  Judge of the Superior Court