Newman v. Community Redevelopment Agency of City of Los Angeles, B197088 (Cal. App. 3/10/2008)

• Decision Date: 10 March 2008
• Docket Number: B197088
• Parties: IVAN J. NEWMAN, et al., Plaintiffs and Appellants, v. COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF LOS ANGELES, et al., Defendants and Respondents. J.H. SNYDER GROUP, LLC, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

Page 1

IVAN J. NEWMAN, et al., Plaintiffs and Appellants, v. COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF LOS ANGELES, et al., Defendants and Respondents J.H. SNYDER GROUP, LLC, Real Party in Interest.

B197088

Court of Appeals of California, Second Appellate District, Division Five

March 10, 2008

NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of Los Angeles County, No. BC338400, George H. Wu, Judge. Affirmed.

Christopher Sutton for Plaintiffs and Appellants.

Aleshire & Wynder and June S. Ailin for Defendants and Respondents.

MOSK, J.

INTRODUCTION

Plaintiffs and appellants Ivan and Barbara Newman (plaintiffs) appeal a judgment of dismissal entered after the trial court sustained without leave to amend demurrers to their second amended complaint. Defendants and respondents are the Community Redevelopment Agency of the City of Los Angeles (the Agency) and the City of Los Angeles (the City). J.H. Snyder Group, LLC (Snyder) was sued as a real party in interest. For the reasons stated below, we affirm.

BACKGROUND

A. Factual Background

As we must, we accept as true the well-pleaded factual allegations in the second amended complaint. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) Plaintiffs alleged the following facts:

In May 1996, the City approved the creation of the Mid City Recovery Redevelopment Project Area (the Project Area), consisting of 725 acres in central Los Angeles that encompasses hundreds of privately owned parcels. The Project Area is managed—along with 37 other redevelopment project areas in the City—by the Agency. By city ordinance, the City adopted a redevelopment plan for the Project Area (the Redevelopment Plan). The Redevelopment Plan provides that, subject to the Redevelopment Plan and rules adopted by the Agency, owners of real property in the Project Area "shall be given the opportunity to participate in redevelopment by rehabilitation, retention of improvements, or new development . . . ."

Plaintiffs own a piece of property (the property) within the Project Area, located at 5057 West Adams Boulevard. The property has been leased to AutoZone, a national chain of auto parts stores. It contains a 12,000 square foot commercial building and an external parking area. Its signage is visible from the Santa Monica Freeway.

In 2000, the Agency entered into an "exclusive negotiating agreement" (ENA) with Ronald A. Simms Commercial Development (the Simms ENA). An ENA is "an agreement entered into between the Agency and a private developer whereby the parties agree to negotiate for a set period of time, and to refrain from negotiating with others, for the development of a particular site." In 2002, the Agency denied plaintiffs' request for building permits, and "justified" its denial by citing "the pending status" of the Simms ENA. Plaintiffs sued the Agency, but subsequently dismissed their case without prejudice when the Simms ENA expired.

During 2004 and 2005, plaintiffs and AutoZone renovated the property at a cost of more than $1 million. The City and the Agency reviewed and approved the renovation plans and determined that the renovation conformed to the Redevelopment Plan. After the renovation work was completed, "employees of the City and/or Agency" inspected the property and approved the completed work. Based on the renovation, plaintiffs requested that the Agency issue them a certificate of conformance to certify that the property met "the requirements of the Redevelopment Plan." Such a certificate, plaintiffs allege, would exempt the property from the Agency's powers of eminent domain should the Agency later wish to redevelop the property. The Agency denied plaintiffs' request in September 2006.

The Agency entered an ENA with Snyder (the Snyder ENA) with respect to redevelopment of a five-block portion of the Project Area that encompasses the property. One member of the Agency's Board of Commissioners recused herself from the vote to approve the Snyder ENA. Plaintiffs allege that this Commissioner had an actual conflict of interest because a corporate entity with which she was affiliated had received funds from various labor unions "to facilitate the development of a Costco store" on the land subject to the Snyder ENA. The Snyder ENA was nevertheless approved, and Snyder deposited $155,000 with the Agency. The Agency's Board of Commissioners extended the Snyder ENA in February 2006, but affected property owners received no notice of the meeting. The Snyder ENA expired in August 2006 with no formal development agreement between Snyder and the Agency.

B. Procedural Background

Plaintiffs filed their original complaint on August 16, 2005, seeking only a declaration that the Snyder ENA was invalid. The Agency and Snyder demurred. The trial court granted the demurrers with leave to amend. Plaintiffs filed a first amended complaint on March 21, 2006. The first amended complaint alleged seven causes of action for declaratory and injunctive relief. The Agency and Snyder again demurred. The trial court again sustained the demurrers with leave to amend.

Plaintiffs filed their second amended complaint on October 11, 2006, approximately two months after the Snyder ENA expired. Plaintiffs alleged eight causes of action for: (1) a declaration that the Snyder ENA was invalid; (2) an injunction prohibiting "any all [sic] further expenditures of public funds or resources pursuant to any [ENA] regarding the Adams-La Brea area" until the City and the Agency "fully comply with the provisions of law;" (3) a declaration that plaintiffs were entitled to a certificate of conformance for the property; (4) a writ of mandate compelling the Agency to issue a certificate of conformance; (5) a declaration adjudicating "the respective rights of the parties" regarding the "procedures and practices" of both the City and the Agency relating to ENAs, as wells as "any and all other matters which relate to [ENAs] within any or all of [the City's] thirty-eight redevelopment project areas;" (6) a declaration adjudicating "the respective rights of the parties" regarding the "procedures and practices" of the City and the Agency relating to "any request or proposal for `owner participation' . . . within each and every of the thirty eight [sic] redevelopment project areas" in the City, as well as "any and all other matters which relate to `owner participation;'" (7) an injunction compelling the City and the Agency "to handle their future considerations [of] any [ENA] and/or any request for `owner participation' in full compliance" with various constitutional, statutory and regulatory provisions; and (8) administrative mandamus to compel the Agency to issue a certificate of conformance for the property.

The Agency and Snyder demurred to the second amended complaint. On January 25, 2007, the trial court sustained the demurrers without leave to amend. With respect to the first and second causes of action relating to the Snyder ENA, the trial court concluded that the claims were moot because the Snyder ENA had expired and "plaintiffs haven't alleged any specific prospect of future injury based upon the expired ENA." With respect to the fifth, sixth and seventh causes of action regarding "procedures and practices" relating to ENAs and owner participation, the trial court observed that there was no allegation that the Agency or the City had taken or were contemplating any action that would impact the plaintiffs' ability to use their property. As a result, plaintiffs stated no justiciable claim. With respect to third, fourth and eighth causes of action regarding the certificate of conformance, the trial court concluded that the decision to issue the certificate was a discretionary decision, and plaintiffs failed to allege facts constituting an abuse of discretion. Plaintiffs timely appealed.

DISCUSSION

A. Standard of Review

An appeal from a judgment dismissing an action after the trial court sustains a demurrer without leave to amend presents a question of law that we review de novo. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415; Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65, 71; Morgan Creek Residential v. Kemp (2007) 153 Cal.App.4th 675, 683.) We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Evans v. City of Berkeley, supra, 38 Cal.4th at p. 6.) We also consider matters that may be judicially noticed. (Ibid.; see Code Civ. Proc. § 430.30, subd. (a).) The judgment must be affirmed if any one of several grounds of demurrer is well taken. (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 21; Franklin v. The Monadnock Co. (2007) 151 Cal.App.4th 252, 257.)

A trial court does not abuse its discretion by denying leave to amend if there is no reasonable possibility that the defect in the complaint can be cured by amendment. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810; see also Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 321.) "[W]hen a complaint contains allegations that are fatal to a cause of action, a plaintiff cannot avoid those defects simply by filing an amended complaint that omits the problematic facts or pleads facts inconsistent with those alleged earlier. [Citations.]" (Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1044.)

B. Plaintiffs Have Failed to Demonstrate Error In Sustaining The Demurrers

1. Plaintiffs Forfeited Any Error in Sustaining the Demurrers

Plaintiffs assert that the trial court erred by sustaining the demurrers to plaintiffs' "new supplemental causes of actions [sic]" in the second amended complaint. Plaintiffs do not identify which of their eight causes of action are the "new supplemental causes of...