# Sullivan Equity Partners, LLC v. City of Los Angeles

> District Court, C.D. California · April 11, 2024

URL: https://www.frixlaw.com/law-library/cases/9986442

## Case

- **Court:** District Court, C.D. California
- **Decided:** April 11, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘Oo’ JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

Present: The Honorable CHRISTINA A. SNYDER
Catherine Jeang Not Present N/A
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Not Present Not Present
Proceedings: (IN CHAMBERS) - CITY OF LOS ANGELES’ MOTION TO
DISMISS THE THIRD AMENDED COMPLAINT (Dkt. 124, filed
on FEBRUARY 22, 2024)
I. INTRODUCTION
On September 22, 2016, plaintiff Sullivan Equity Partners, LLC (“Sullivan
Equity”) filed the instant action against defendants City of Los Angeles (the “City”) and
Does 1-50, inclusive. Dkt. 1. Plaintiff asserted six claims against defendants: (1) denial
of procedural and substantive due process, pursuant to 42 U.S.C. § 1983; (2) violation of
the Excessive Fines Clause of the Eighth Amendment, pursuant to 42 U.S.C. § 1983; (3)
violation of the Equal Protection Clause, pursuant to 42 U.S.C. § 1983; (4) slander of
title; (5) petition for a writ of mandate, pursuant to California Code of Civil Procedure §
1094.5; and (6) declaratory relief. Id. On January 9, 2017, the Court granted in part and
denied in part the City’s motion to dismiss plaintiff's complaint. Dkt. 24. Specifically,
the Court dismissed without prejudice plaintiffs excessive fines, equal protection, and
slander of title claims, but denied the City’s motion as to plaintiff's due process, writ of
mandate, and declaratory relief claims. Id. On February 8, 2017, plaintiff filed a notice
of its intent to stand on its pleadings. Dkt. 25.
Plaintiff alleges that on March 14, 2016, after a public hearing, the City’s Bureau
of Street Services (the “Bureau’”’) revoked plaintiffs building and grading permits and
imposed a five-year moratorium on the issuance of future building permits as a penalty
for plaintiff's violation of the municipal code. See Plaintiff's Third Amended Complaint
(the “TAC’), filed on January 25, 2024, 9 117-18. On June 24, 2016, the Board of
Public Works (the “Board”’) upheld this decision on appeal. Id. 128. The gravamen of
plaintiff's complaint is that the two administrative hearings were shams—and therefore

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘Oo’ JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

violated plaintiff's due process rights—because members of the Bureau and the Board
were biased against plaintiff.
On March 3, 2017, the City filed a motion requesting that the Court abstain from
hearing this case pursuant to Railroad Commission v. Pullman Co., 312 U.S. 496 (1941).
Dkt. 27. On April 12, 2017, the Court granted the City’s motion and stayed this action
pending resolution of plaintiff's writ of mandate claim in state court, finding that
abstention was appropriate under Pullman because plaintiff's complaint concerned a
sensitive area of social policy governed by state law—land use, and plaintiffs writ of
mandate proceeding could obviate the need to consider its federal claims. Dkts. 36, 37.
In its order, the Court stated that it would retain jurisdiction to address plaintiff's federal
claims so long as plaintiff made a reservation in the state court proceeding under England
v. Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964), and such claims
were not mooted by the state court proceeding. Dkt. 36.
On May 12, 2017, plaintiff filed a first amended verified petition and complaint for
a writ of mandate and for inverse condemnation in Los Angeles Superior Court. Dkt. 96,
96-1 (“RJN”), Exh. A. Plaintiff included an England reservation stating that it “expressly
reserves its rights to return to federal court in the Central District of California for
adjudication of the federal claims previously alleged . . . including claims for Procedural
Due Process Violations; Substantive Due Process Violations; Civil Rights Violations, 42
U.S.C. § 1983; and Declaratory Relief.” Id. 110. The petition and the complaint
included causes of action for: (1) a petition for a writ of mandate pursuant to California
Code of Civil Procedure § 1094.5, alleging that the City failed to provide plaintiff with a
fair hearing and that the City’s decision was not supported by the evidence; (2) a petition
for a writ of mandate pursuant to California Code of Civil Procedure § 1085, alleging that
the City acted outside of its authority when it revoked plaintiffs grading permits; and (3)
inverse condemnation. Id. 111-129. On December 12, 2017, the Superior Court
stayed the inverse condemnation claim pending resolution of the writ claims. Dkt. 96,
RJN, Exh. B.
On August 12, 2019, following a bench trial on the matter, the Superior Court
granted plaintiffs writ petition on the first cause of action, concluding that certain ex
parte communications created an unacceptable probability of bias in the administrative
proceedings. Id. The Superior Court dismissed plaintiff's second cause of action as
moot. Dkt. 96, RJN, Exh. D at 2. In its decision described below, the California Court of

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘Oo’ JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

Appeal subsequently affirmed the Superior Court’s dismissal of the second cause of
action. Dkt. 96, RJN, Exh. C at 43.
On September 4, 2019, plaintiff notified this Court of the Superior Court’s ruling
on plaintiffs state court petition for writ of mandate. Dkt. 42. On October 2, 2019, the
parties filed a joint stipulation to lift the stay and to permit the filing of an amended
complaint. Dkt. 44. Pursuant to the stipulation of the parties, plaintiff filed a first
amended complaint (the “FAC”) on October 2, 2019. Dkt. 45. Plaintiff's FAC asserted
three claims against the City: (1) denial of procedural and substantive due process,
pursuant to 42 U.S.C. § 1983; (2) inverse condemnation in violation of the Fifth and
Fourteenth Amendments, pursuant to 42 U.S.C. § 1983; and (3) a claim for declaratory
judgment that plaintiff has a right to have its permits reinstated on account of numerous
constitutional violations. Id.
On November 25, 2019, the City filed a motion to dismiss plaintiff's inverse
condemnation claim. Dkt. 49. On January 22, 2020, the Court granted the City’s motion
to dismiss without prejudice, finding that plaintiff's inverse condemnation claim was not
ripe because the Superior Court had not yet issued a final decision that would allow the
Court to determine the extent of the alleged taking. Dkt. 54. The City filed its answer to
the FAC on February 14, 2020. Dkt. 55.
On July 20, 2020, the City filed a motion to stay this action pending resolution of
its appeal of the Superior Court’s decision. Dkt. 63. On October 5, 2020, the Court
issued an order reinstating the stay under Pullman pending final resolution of plaintiffs
state court action. Dkt. 72.
On July 19, 2022, the California Court of Appeal reversed the Superior Court’s
decision on the first cause of action, holding that plaintiff had failed to demonstrate that
the City’s administrative proceedings were unfair. Dkt. 96, RJN, Exh. C. The Court of
Appeal specifically concluded that “there is insufficient evidence of bias to establish a
violation of due process.” Id. at 29. Subsequently, the Superior Court set a trial date to
hear the remaining issue of whether there were sufficient findings to support the decision
of the Board and substantial evidence to support those findings. Dkt. 96, RJN, Exh. D.
On April 10, 2023, following the bench trial, the Superior Court issued a final order
ruling against plaintiff and denying the petition. Id. On April 24, 2023, the Superior
Court filed its judgment denying plaintiff's first amended petition in its entirety and

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘Oo’ JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

entering judgment in favor of the City. Id. Plaintiff did not appeal that decision, and it is
now final.
On July 7, 2023, the City filed a motion for judgment on the pleadings on the
remaining claims in the FAC. Dkt. 96. On July 31, 2023, the Court held a hearing on the
City’s motion. On August 1, 2023, the Court issued an order requesting that plaintiff
submit a supplemental brief addressing whether it had a full and fair opportunity to
litigate its claims in state court. Dkt. 102. On August 10, 2023, plaintiff filed its
supplemental brief in opposition to the City’s motion for judgment on the pleadings. Dkt.
103. Even though the Court did not request any briefing from the City, the City filed a
supplemental brief in support of its motion on August 14, 2023. Dkt. 105. On September
15, 2023, the Court granted the City’s motion for judgment on the pleadings, with leave
to amend for plaintiff on the issue of whether it had a full and fair opportunity to litigate
its claims in state court. Dkt. 106. The Court also denied plaintiff’ s request to amend

its September 15, 2023 order granting the City’s motion for judgment on the
pleadings, the Court considered plaintiff's England reservation and concluded that issue
preclusion could apply to issues necessarily and actually litigated and decided in the state
court proceedings. Dkt. 106 at 15. The Court then considered whether the requirements
for issue preclusion had been met. Id. at 16. The Court concluded that the first, third,
and fourth elements of issue preclusion had been met, finding that “[t]he issues sought to
be relitigated [were] identical to those raised in the state mandamus proceedings, and
these issues were necessarily decided in a final decision on the merits.” Id, at 19. With
regard to the second element, the Court permitted plaintiff leave to amend to address
whether plaintiff had a full and fair opportunity to litigate its claims in state court. Id. at
22-23, 26. Finally, the Court found that the remaining elements of issue preclusion
weighed in favor of the City. Id. at 23. Plaintiff relies upon Jamgotchian v. Ferraro, 93
F.4th 1150 (9th Cir. 2024), to argue that “the state agency determination is not a basis to
deny federal jurisdiction in this case.” Dkt. 125 at 10. However, unlike Jamgotchian,
which addresses the preclusive effect of a state administrative agency decision, this
action concerns the preclusive effect of a judgment of a state court. In addition, the
California Horse Racing Board in Jamgotchian acknowledged that it lacked jurisdiction
to decide the constitutional issue in the matter before it. Here, by contrast, the Superior
Court and the Court of Appeal could decide the constitutional due process issue.
Jamgotchian did not decide that preclusive effect could not be given to a state court
proceeding that actually occurred after the administrative proceedings took place, and

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘Oo’ JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

the FAC to reallege an inverse condemnation claim because it concluded that the
enforcement of the ordinance against plaintiff could not give rise to a takings claim as a
matter of law. Id.
On October 16, 2023, plaintiff filed a second amended complaint (the “SAC”).
Dkt. 107. Plaintiff's SAC asserted the same claims for relief against the City as the FAC.
Id. On November 13, 2023, the City filed a motion to dismiss the SAC. Dkt. 113. On
December 11, 2023, the Court granted the City’s motion to dismiss plaintiff's due
process and declaratory relief claims, with leave to amend for plaintiff to allege with
particularity how the state court proceedings deprived it of the opportunity to fully and
fairly litigate its due process claim. Dkt. 117. The Court also dismissed plaintiffs
inverse condemnation claim with prejudice. Id.
On January 25, 2024, plaintiff filed a third amended complaint (the “TAC’). Dkt.
119. The TAC asserts two claims against the City: (1) denial of procedural and
substantive due process, pursuant to 42 U.S.C. § 1983; and (2) declaratory relief. Id. On
February 22, 2024, the City filed a motion to dismiss the TAC and attached a request for
judicial notice in support of its motion.* Dkts. 124, 124-1. On March 7, 2024, plaintiff

where the state court had jurisdiction to decide whether due process had been violated in
the administrative proceedings.
? Defendant requests that the Court take judicial notice of eleven exhibits. Dkt. 124-1.
These include: (1) a true and correct copy of LAMC § 46.00, et seg., amended by
Ordinance Number 177404, entitled “Preservation of Protected Trees;” (2) a true and
correct copy of the First Amended Verified Petition For Writ Of Mandate And Complaint
filed in Los Angeles Superior Court Case No. BS169541 on or about May 12, 2017; (3) a
true and correct copy of the Status Report Re State Court Appeal filed in this case on
September 2, 2022; (4) a true and correct copy of the signed judgment in favor of City,
dated April 24, 2023, in the matter of Sullivan Equity Partners LLC v. City of Los
Angeles, Los Angeles Superior Court Case No. BS169541; (5) a true and correct copy of
“Respondent City’s Supplemental Opposition to Petition for Writ of Mandate” filed in
Los Angeles Superior Court Case No. BS169541 on or about February 17, 2023; (6) a
true and correct copy of “Supplemental Reply Brief of Petitioner Sullivan Equity
Partners, LLC” filed in Los Angeles Superior Court Case No. BS169541 on or about
March 6, 2023; (7) a true and correct copy of “Volume 10 of 10” of the Administrative
Record filed in Los Angeles Superior Court Case No. BS169541; (8) a true and correct

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘Oo’ JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

filed an opposition to the City’s motion to dismiss and objection to the City’s request for
judicial notice. Dkt. 125. Plaintiff also filed two requests for judicial notice, one on
March 7, 2024, and the second on March 13, 2024.7 Dkts. 126, 129.
On March 25, 2024, the Court held a hearing on the City’s motion to dismiss the
TAC. On March 26, 2024, plaintiff filed a supplemental brief to the City’s motion to
dismiss. Dkt. 130. On April 10, 2024, plaintiff filed a second supplemental opposition
brief to the City’s motion to dismiss. Dkt. 132.
Having carefully considered the parties’ arguments and submissions, the Court
finds and concludes as follows.

copy of “Petitioner Sulltvan Equity Partners, LLC’s Request for Judicial Notice” filed in
Los Angeles Superior Court Case No. BS169541 on or about March 15, 2019; (9) a true
and correct copy of “Horticultural Tree Report” signed by Richard Ibarra, dated
December 11, 2007, included in the Administrative Record filed in Los Angeles Superior
Court Case No. BS169541, at AR 746-777; (10) a true and correct copy of “Protected
Tree Report” signed by Robert Wallace, dated July 23, 2012, included in the
Administrative Record filed in Los Angeles Superior Court Case No. BS169541, at AR
989-1070; and (11) a true and correct copy of “Response to Notice for February 12
Administrative Hearing Regarding 1834 and 1838 Old Ranch Road Tree Removal
Permit” signed by Patrick G. Mitchell, dated February 10, 2016, with Exhibit A —
Declaration of Robert W. Wallace, included in the Administrative Record filed in Los
Angeles Superior Court Case No. BS169541, at AR 578-585. Id. In opposition, plaintiff
argues that certain of defendant’s attachments are not judicially noticeable, including the
other tree reports, which are hearsay and not pleadings. Dkt. 125 at 13. The Court finds
that judicial notice of these documents is appropriate pursuant to Federal Rule of
Evidence 201.
3 Plaintiff requests that the Court take judicial notice of three exhibits. Dkts. 126, 129.
These include: (1) a picture of Tree #5; (2) a picture of Tree #29; and (3) defendant’s
Exhibit D, which is the April 24, 2023 judgment in favor of the City in the Superior
Court, “which states that the state court judge referred to the Wallace Tree Report 17
different times in the judgment].]” Dkts. 126, 129. As mentioned above, the Court finds
that judicial notice of the final judgment in the Superior Court is appropriate. The Court
also judicially notices the first two exhibits consisting of photographs of trees.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘Oo’ JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

II. BACKGROUND
A. Plaintiff’s Factual Allegations
Plaintiff alleges the following facts in the TAC. Plaintiff owns two vacant lots
(“the Properties”) in the Sullivan Canyon area of the City of Los Angeles. TAC { 6-8.
“The influential neighbors and community activists with ties to people in the highest
levels of local, state and national government were and are strongly united and committed
to ensuring that the properties are not developed.” Id. { 9. On July 25, 2014, plaintiff
obtained building, grading, and retaining wall permits to construct a single-family home
on one of the Properties. Id. 4 10. Plaintiff also sought and obtained a tree permit, which
allowed the removal of 56 protected trees. Id. {J 17, 55. LAMC §§ 46.00 ef seg. (the
“Protected Tree Ordinance’) regulates the removal and relocation of protected trees. Id.
Section 46.01 defines protected trees as any Oak, Southern California Black
Walnut, Western Sycamore, or California Bay tree of a certain size. Id. No protected
tree may be removed or relocated absent a permit from the Board or its designated officer
or employee. Id. § 14. Ifa protected tree has been removed or relocated in violation of
LAMC § 46.00, LAMC § 46.06, which plaintiff alleges is known as the “Scorched Earth
Ordinance,” “sets forth certain stringent punishments which may be imposed by the City
following quasi-judicial administrative hearings.” Id. § 16. In determining whether to
revoke or withhold permits, LAMC § 46.06(c) provides that the Bureau shall consider the
following factors: the number of trees/shrubs removed or relocated, the size and age of
those trees/shrubs, the knowledge and intent of the property owners with respect to
removal or relocation, and prior violations of the law with respect to removal and
relocation of protected trees. Id. 4 32. Plaintiff alleges that “| g]iven the facts of the case,
that not any one of these ordinance requirements were met by the [City], the revocation
of the building permits was illegal and a product of undue political influence perpetrated
on the administrative decision makers.’* Id.
Before the Board issued a tree permit to plaintiff, Ron Lorenzen, then the City
Assistant’s Chief Forester, issued a memorandum to the City’s Environmental Review
Unit stating that the tree removals that plaintiff sought were necessary to allow for
reasonable development of the site. Id. After receiving the tree permit, plaintiff
4 Plaintiff asserts that it had no prior violations; “[t]he trees were not ‘aged:”” and the
Superior Court, unlike the administrative agencies, found that plaintiff did not intend to
remove the trees. TAC {ff 33-34, 44.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘Oo’ JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

hired Ricardo Gonzalez to remove the 56 protected trees covered by the permit. Id. § 57.
On September 29, 2014, Gonzalez and his employees removed trees from the property
that Gonzalez had identified as permitted for removal. Id. {] 58-59. However, Gonzalez
incorrectly removed three trees—Trees #5, #29, and #30—that were not covered by
plaintiff's permit. Id. | 60. After the trees’ removal, neighbors opposed to plaintiff's
development of the Properties were upset that the tree permit had been issued without
notice to them, yet “the Planning Administrator made a factual finding that Project
Opponents did receive notice and failed to act.” Id. 62. One individual submitted a
complaint to City Councilmember Mike Bonin, suggesting that the removals were not
permitted or improperly permitted. Id. §/ 65. After a series of emails between Bonin and
City officials, Board President Kevin James confirmed that a tree removal permit had
been granted. Id, § 69. Political pressure mounted from a neighborhood opposition
group and from prominent politicians. Id. {| 71, 78. Opponents from the neighborhood,
former and current public officials, and a famous actor submitted letters and emails to,
among others, Bonin and a member of his staff, Mayor Eric Garcetti and members of his
staff, the City Attorney, and a City Project Planner. Id. §] 79-87.
On September 22, 2015, Gideon Kracov—counsel for the Sullivan Canyon
Property Owners Association—sent an email to James demanding that the Department of
Public Works perform another site inspection of the Properties. Id. J 92. Plaintiff
alleges, based on information and belief, that Lorenzen—at that point, Assistant Director
of Street Services—inspected the Properties on December 7, 2015, and discovered the
three trees that Gonzalez improperly removed. Id. {J 82, 96. Lorenzen reported this
finding to James in an email on December 8, 2015, and set out three options for
responding to the violation. Id. 4 97-98. On December 9, 2015, Greg Good—Director
of Infrastructure for the Office of the Mayor—emailed James and stated: “Again, this is
amazing — and you have several options. What are you thinking at this point?” Id. § 101.
Plaintiff alleges that Good was referring to the discovery of the Gonzalez errors. Id. On
December 11, 2015, in an email to Lorenzen, Bonin’s Chief of Staff, Chad Molnar, stated
that Bonin strongly believed that the City should revoke all permits for plaintiffs project,
given the violation. Id. {] 76, 102-03. In response, Lorenzen stated that he was “in
agreement.” Id. § 104. On December 15, 2015, Molnar emailed James, saying that
Bonin felt “strongly that we need to quickly move ahead with revoking those permits”
and that Lorenzen “is working through the process with the City Attorney.” Id. {| 105.
Molnar also stated that he understood that James “wanted to help with this as well.” Id.
Also on December 15, 2015, Debbie Dyer Harris, District Director for Bonin, sent an

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O° JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

email to Molnar and another member of Bonin’s staff, stating that Harris had received a
call from Greg Spotts, Assistant Director at the Bureau. Id. § 107. Spotts reportedly told
Harris that he was told that Bonin’s office “wants to implement the scorched earth policy
to prevent the builder from building on the site for 10 years.” Id. Molnar responded to
Harris: “Yes, that is true. Mike feels strongly that we need to revoke all building and
construction permits, and ban new permits for ten years. I will call him.” Id. According
to plaintiff, “[t|hese communications reveal a conspiracy among Lorenzen and James on
the one hand, and the high-ranking representatives of the Mayor’s office and
Councilmember Mike Bonin’s office on the other hand, to come up with a creative
procedural mechanism, decided in advance and before any hearings had taken place” to
revoke the permits. Id. § 109. Plaintiff alleges that due to the community’s outrage,
Lorenzen and James felt they needed to “make up” for past decisions, as Lorenzen had
originally approved the removal of the trees, and “find a way to block [p]laintiff’s
project.” Id. § 110.
Plaintiff recerved a Notice of Administrative Hearing on December 20, 2015,
indicating that three trees had been removed without a permit and that the Bureau
intended to act pursuant to LAMC § 46.06. Id. §] 62, 108. A hearing was scheduled
before the Bureau on February 12, 2016. Id. { 111. On February 10, 2016, plaintiffs
attorney submitted a letter to the Board in advance of the hearing stating that the removal
of the three trees was an unintentional error, that plaintiff was unaware of the error prior
to the Bureau notice, that plaintiff had never improperly removed protected trees, and that
the circumstances did not warrant the application of the “Scorched Earth” penalty. Id.
Plaintiff's counsel volunteered additional mitigation and replacement measures. Id.
Plaintiff also submitted sworn declarations from the arborist, property owners, and site
supervisor stating that the removal was unintentional, and that there was no benefit to be
gained by the removal because the three trees had not blocked access or otherwise
interfered with plaintiff's development plans. Id. § 112.
On February 11, 2016, Molnar wrote to a “Project opponent” stating that he
“personally sat down with Urban Forestry to discuss this hearing . . . and they are fully
aware of CM Bonin’s expectation that the department will hold the applicant accountable
for the removal of the protected trees.”> Id. § 113. On February 12, 2016, the hearing
before the Bureau took place, before Lorenzen, who served as the hearing officer. Id. §
> The City’s Urban Forestry Division is a division within the Bureau. TAC § 11.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O° JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

114. Lorenzen, who recommended the issuance of the permits, had been publicly
scrutinized for his actions, acted as the City’s lead investigator into the matter,
“schemed” with a representative of the Mayor’s office to come after plaintiff, and was “in
agreement” that plaintiff's building permits should be revoked. Id. Plaintiff thus alleges
that the hearing was a sham and the result preordained and that Lorenzen’s overlapping
roles resulted in an unfair administrative hearing. Id. 114-15. During the hearing,
plaintiff presented evidence that the removal of the three non-permitted trees was
accidental and proposed mitigation measures. Id. 116.
On March 14, 2016, the Bureau issued its determination, recommending the
invocation of the “Scorched Earth Ordinance.” Id. § 117. Specifically, the Bureau
recommended that the Department of Building and Safety revoke all existing building
permits, suspend existing building permits, and suspend issuance of any new building
permits on the Properties for five years. Id. The Bureau’s primary findings were that:
(1) three of the protected trees on the Properties were removed improperly; (2) plaintiff
“had implemented a comprehensive process to ensure that only those trees permitted to
be removed would in reality be removed”; and (3) because trees were improperly
removed in spite of these measures, plaintiff intended to willfully remove the three non-
permitted trees. Id. 119. The Bureau further concluded that the three trees “were not
removed by accident but intentionally to provide better access to the property or in some
other fashion enable easier development.” Id. § 121. Plaintiff alleges that this finding
cannot be sustained because “all of the evidence . . . was to the contrary.” Id. According
to plaintiff, the revocation of existing building permits and a five-year moratorium on
new permits means that any future development of the Properties would have to comply
with the City’s new hillside ordinance, which does not allow for the design and size of
the homes that plaintiff planned for the Properties. Id. §] 122. Therefore, the revocation
and suspension of plaintiff's building permits prevent its planned project from being
developed indefinitely. Id.
On April 12, 2016, plaintiff timely appealed the Bureau determination to the
Board. Id. § 123. In advance of the hearing on plaintiff's appeal, Lorenzen prepared a
staff report recommending that the Board deny plaintiff's appeal. Id. 4 126. On June 24,
2016, the Board heard plaintiff's appeal and voted to uphold the Bureau determination.
Id. § 128. James, president of the Board, presided over the hearing and made the motion
to deny the appeal. Id. 125, 131. Plaintiff alleges that James was biased against
plaintiff and plaintiff's project and had precommitted to ensure the appeal was denied.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘Oo’ JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

Id. § 125. James was “politically motivated to clear the name of the Department that had
issued the tree permit in the first place.” Id, In addition, James and other members of
Department staff failed to disclose their “ex parte communications.” Id. § 128.
Plaintiff's counsel submitted a Public Records Act request for, and received some, of
these ex parte communications, which reveal the conspiracy among Lorenzen, James,
Kracov, influential members of the community, representatives of the Mayor’s office,
and representatives of Bonin’s office. Id. 129. The City “strategically delayed
transmitting most of the most damaging emails to [p]laintiff until after both hearings had
already taken place, depriving [p]laintiff of the ability to include them in the
administrative record that would be considered at the hearing.” Id. 4 130.
B. Proceedings in State Court
Plaintiff's factual allegations in the state court action are virtually identical to its
allegations in this action. (Compare dkt. 96, RJN, Exh. A 14-108 to TAC 4 6-132).
As relevant here, plaintiff's first cause of action in the state court petition and complaint
alleged that “[t|he City failed to provide a fair hearing prior to the revocation of the
[p]ermits.” Dkt. 96, RJN, Exh. A § 115. Although administrative mandamus
proceedings are generally limited to the administrative record, plaintiff sought additional
discovery before the Superior Court. Dkt. 96, RJN, Exh. C at 22. While the Superior
Court denied most of plaintiff's discovery requests, it permitted certain additional
discovery. Id. This included limited depositions of James and Lorenzen involving
questions on specific emails. Id. Excerpts of the deposition transcripts were admitted
into the record. Id, The Superior Court additionally granted plaintiff's request to
augment the record with seven email chains (totaling twelve pages) that the Superior
Court concluded could be relevant to plaintiff's claims of bias. Id.
As set forth above, on August 12, 2019, following briefing and a bench trial, the
Superior Court issued an order finding that with respect to plaintiff's first cause of action,
plaintiff had demonstrated an unacceptable probability of actual bias. Id. at 26-28. On
appeal, the Court of Appeal reversed, concluding that plaintiff had failed to show that the
hearing was unfair based on the claim of bias. Id. at 29. Specifically, the Court of
Appeal considered plaintiff's argument that Lorenzen and James were personally
embroiled in the dispute and concluded that “neither Lorenzen nor James held a financial
stake, harbored personal animosity, or held any other personal interest in the project.” Id.
at 35. Further, the Court of Appeal concluded that the statements made by Lorenzen and

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘Oo’ JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

James at the hearings and in emails were insufficient evidence that they had
precommitted to a result. Id, 36-38. Finally, the Court of Appeal concluded that “the
overlapping administrative roles inhabited by Lorenzen and James were permissible and
that [plaintiff] failed to produce evidence of bias arising from those roles.” Id. at 38. In
accordance with these findings, the Court of Appeal concluded that plaintiff had failed to
present evidence of “a constitutionally unacceptable risk of bias.” Id. at 41. The Court of
Appeal therefore reversed the Superior Court’s order granting plaintiff's writ petition.
Following the decision on appeal, the Superior Court set a trial date to hear the
remaining issue of whether there were sufficient findings and substantial evidence to
support the administrative findings. Dkt. 96, RJN, Exh. D. On April 10, 2023, after
conducting a bench trial, the Superior Court issued a final order ruling against plaintiff
and denying the petition. Id.
According to the TAC, even though plaintiff prevailed in the initial Superior Court
proceeding, plaintiff was nonetheless denied a full and fair opportunity to litigate its
claims in state court. TAC § 134. In this regard, plaintiff alleges that the City prepared
the administrative record before the state court and omitted hundreds of pages of relevant
documents that plaintiff believed would help show it was deprived of a fair
administrative hearing. Id. {| 136-37. Because the City “cherry-picked 42 pages of
emails” for the record, plaintiff moved to augment the record with 676 pages of emails
that it had obtained through a Public Records Act request. Id. J 138-41. However, the
Superior Court admitted only 12 of the 676 pages, excluding the majority of emails
pursuant to Code of Civil Procedure § 1094.6. Id. 4 142, 147. Plaintiff contends that
the excluded emails reveal ex parte communications and the City decisionmakers’
personal embroilment, which support plaintiffs allegation that the City precommitted to
an outcome before the hearings. Id. 9] 145-46, 149-55. The Superior Court also
repeatedly denied plaintiff's motions to compel discovery, through which plaintiff sought
“to acquire direct and specific evidence of the collusion, improper political influence,
corruption, and bias exhibited by the hearing officers.” Id. 4] 160-63, 166-68. Plaintiff
further sought to take seven depositions “to get the full picture of the conspiracy” to
deprive plaintiff of its permits. Id. §] 169, 171. Instead, the Superior Court permitted
plaintiff to ask Lorenzen and James five questions at limited depositions and admitted
only a small fraction of those transcripts into the record. Id. 4 172. The Court of Appeal
then ruled against plaintiff, finding there was insufficient evidence to show an
unacceptable probability of actual bias, even though this was the type of evidence

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘Oo’ JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

plaintiff repeatedly sought to introduce into the record. Id. §§ 174, 177. The Court of
Appeal also rejected plaintiff's argument that the Superior Court erred by refusing to
augment the record with certain emails plaintiff sought to add to the record. Dkt. 96,
RJN, Exh. C at 22-23 n.12.
C. ‘Plaintiff's New Allegations in the TAC
The TAC alleges additional facts intended to demonstrate that plaintiff was denied
a full and fair hearing both in the administrative proceedings and in the Superior Court.
Plaintiff now asserts for the first time that according to the Wallace Tree Report, which
the Superior Court judge determined “to be the primary document to be relied on by the
parties to determine their rights to the allegedly improperly removed trees,” Tree #29 is
an unprotected Wild Lilac. TAC § 21. However, the Superior Court and administrative
hearing officers found that the Protected Tree Ordinance covered Tree #29 because it was
a Black Walnut. Id. Plaintiff alleges that Lorenzen knew that Tree #29 was not protected
but certified that 1t was protected and then affirmed his own incorrect finding. Id. § 22.
Lorenzen also affirmed that Tree #5 was a protected California Sycamore. Id. § 29.
However, according to plaintiff's new allegations, Tree #5 was properly removed
pursuant to the Protected Tree Ordinance because it would have prevented the reasonable
development of the property, would have made it impossible to access the property, and
was already falling over and waterlogged. Id. {§] 26-27. Moreover, because only
“Western Sycamores” are protected, Tree #5 was likely not protected because it was
identified as only a “Sycamore” and had no leaves, rendering even its identification as a
Sycamore unlikely. Id. ] 28. With regard to Tree #30, the Wallace Tree Report depicts it
“in a lush area where it cannot be shown that any tree that was removed would affect the
holistic woodland requirements of the City.” Id. § 30. Further, contrary to the
established protocols in the Protected Tree Ordinance and within the City’s agencies, the
City did not accept plaintiff's offer to mitigate the alleged illegal removal of the three
trees, which was “unheard of.” Id. § 31.
Plaintiff alleges that the outcome of the administrative hearings was preordained.
Id. § 38. According to plaintiff, the City officials who presided over the administrative
hearings communicated with high profile politicians and further had “conducted the
investigation into the tree removal, had previously announced they were committed to
invoking the drastic remedies supplied by the City’s so-called “Scorched Earth
Ordinance’ even before the hearings took place and were personally embroiled in the

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘Oo’ JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

controversy and politically motivated and pressured to deprive [p]laintiff of its property
rights.” Id. Plaintiff contends that it was deprived of the opportunity to fully and fairly
litigate its due process claim in state court because Lorenzen fraudulently concluded that
Tree #29 was a Black Walnut, and communicated his decision to other Board members
and his intent to deny plaintiff's permits to Bonin’s office. Id. ] 39-41. Similarly,
plaintiff was deprived of its right to a full and fair hearing because Lorenzen advised the
Board members that Tree #5 was protected without any proof of its protected status. Id.
| 42-43. The Board members also did not release their communications with outside
“pyolitical forces” to plaintiff. Id. | 43. Finally, plaintiff was denied a full and fair
hearing in state court “when the California Court of Appeal reversed every factual
finding made by the trial court according to a redetermination of all facts at issue
involved in the matter from findings made by the Administrative Board and then findings
made by the state court judge[].” Id. § 46.
Il. LEGAL STANDARD
A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the claims asserted in a complaint. Under this Rule, a district court
properly dismisses a claim if “there 1s a ‘lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.”” Conservation Force v.
Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balisteri v. Pacifica Police Dep’t,
901 F.2d 696, 699 (9th Cir. 1988)). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to
provide the ‘grounds’ of his “entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[F]actual allegations must
be enough to raise a right to relief above the speculative level.” Id.
In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all
material allegations in the complaint, as well as all reasonable inferences to be drawn
from them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be
read in the light most favorable to the nonmoving party. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). However, “a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘Oo’ JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); see Moss v. United States Secret Service,
572 F.3d 962, 969 (9th Cir. 2009) (“[F]or a complaint to survive a motion to dismiss, the
non-conclusory ‘factual content,’ and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to relief.”). Ultimately,
determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679.
Unless a court converts a Rule 12(b)(6) motion into a motion for summary
judgment, a court cannot consider material outside of the complaint (e.g., facts presented
in briefs, affidavits, or discovery materials). In re American Cont’] Corp./Lincoln Sav. &
Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court
may, however, consider exhibits submitted with or alleged in the complaint and matters
that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon
Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999): see Lee v. City of Los
Angeles, 250 F.3d 668, 689 (9th Cir. 2001).
As a general rule, leave to amend a complaint which has been dismissed should be
freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when “the
court determines that the allegation of other facts consistent with the challenged pleading
could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture
Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
IV. DISCUSSION
A. The First Claim of the TAC Fails Because It Is Barred by the Doctrine
of Issue Preclusion
In the TAC, plaintiff alleges that the Wallace Tree Report shows that Tree #29 is
not protected and that Tree #5 was properly removed pursuant to the Protected Tree
Ordinance. TAC §[ 21, 26-28. Plaintiff attached the relevant pages from the Wallace
Tree Report as Exhibit A and Exhibit B to the TAC and included the pages in its request
for judicial notice. See TAC; dkt. 126. However, defendant contends that the photos
included by plaintiff appear to be from a report prepared by Richard Ibarra rather than
from the Wallace Tree Report. Dkt. 124 at 27-28: dkt. 127 at 2; dkt. 124-11, exh. J; dkt.
124-12, exh. K.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O° JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

Defendant argues that despite the Court’s December 11, 2023 order directing
plaintiff to allege with particularity how it was deprived of the opportunity to fully and
fairly litigate its due process claim in the Superior Court, plaintiff has not alleged any
new facts to establish its due process claim. Dkt. 124 at 17, 23. Defendant contends that
the new allegations in the TAC “instead raise new legal theories concerning the
application of the Protected Tree Ordinance and attempt to create a new factual dispute
concerning the classification of the protected trees at issue, based on a new reading of
facts that were already part of the administrative record in the State Action.” Id. at 17-18.
According to defendant, these allegations do not relate to the issue of Lorenzen or James’
personal bias, appear to be alternative legal arguments that plaintiff could have but did
not make in the Superior Court proceeding, and fall outside the bounds of the Court’s
permitted amendment. Id. at 19. For example, defendant asserts that the new allegations,
which rely on factually incorrect arguments, “appear to raise the issue, for the first time,
of whether [Trees #5 and #29] were even subject to the requirements of the [Protected
Tree Ordinance].”° Id. at 19, 27-28. Defendant contends that adverse rulings by the
Bureau, Board, and state court do not mean that plaintiff was denied a full and fair
opportunity to litigate its due process claim. Id. at 20-21. Further, defendant argues that
plaintiff's allegations in the TAC focus on the administrative proceedings instead of the
Superior Court proceeding. Id. at 21. According to defendant, plaintiff knew what the
Protected Tree Ordinance and the two older tree reports from 2007 and 2012 stated
before the Superior Court proceeding, and “[f]or this reason alone, [it] fails to ‘allege
with particularity how the state court proceedings deprived plaintiff of the opportunity to
fully and fairly litigate its due process claim.’” Id. at 21-22, 24 (emphasis in original).
In addition, defendant contends that the new allegations in the TAC represent
arguments that were made, strategically ignored, or even contradicted in the Superior
Court proceeding. Id. at 23-24. As such, it argues that plaintiff “should not now be
permitted to relitigate issues decided against [it] because of unsuccessful litigation
choices and a desire to try alternative legal theories on previously known facts.” Id. at
24. Further, defendant contends that plaintiff conceded in the administrative proceedings
that Trees #5 and #29 were protected. Id. Defendant asserts that plaintiff has thus
waived this issue and cannot now dispute the classification of the trees. Id. at 24-25.

° According to defendant, plaintiff appears to refer to photos from Richard Ibarra’s
report, which was prepared five years before and 1s not the same as the Wallace Tree
Report. Dkt. 124 at 27-28.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O° JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

Defendant also argues that the new issues raised by plaintiff regarding the classification
of the trees and the application of the Protected Tree Ordinance were decided in the
Superior Court, which entered a final judgment on the merits. Id. at 26. According to
defendant, this Court must give preclusive effect to the state court judgment, and plaintiff
is “barred from relitigating any issue pertaining to the revocation [under the Protected
Tree Ordinance] in the instant federal proceeding that it could have raised in the State
Action but chose not to.” Id. at 26-27.
In opposition, as noted above, plaintiff relies on the Ninth Circuit decision in
Jamgotchian, decided on February 26, 2024. Dkt. 125 at 6-10. According to plaintiff,
Jamgotchian establishes that a state administrative agency decision does not preclude a
plaintiffs § 1983 claim in federal court and that a plaintiff is no longer required to seek
review in state court prior to bringing a § 1983 claim. Id. at 6-10. Thus, plaintiff
contends that the Jamgotchian decision “completely extinguishes the basis for the Motion
to Dismiss,” as Lorenzen and James predetermined the outcome of the Board’s decision
and prevented plaintiff from having an adequate opportunity to litigate. Id. at 4, 11.
Further, plaintiff contends that the Wallace Tree Report shows that Trees #5 and #29
were not protected trees, yet “Ron Lorenzen represented these trees as protected as the
City [F]orester who went to the site and then ascended to the Board of Public Works,
represented to other Board members his fraudulent conclusions and then voted to affirm
his fraud.” Id. at 11. While defendant argues that plaintiff knew these facts when it
litigated the state court action, plaintiff argues that the question of “who knew what —
when — is a factual dispute.” Id. at 11-12. Finally, plaintiff contends that the fabrication
of evidence by Lorenzen is a basis for the Court to permit plaintiff to bring a § 1983
claim against defendant. Id. at 12-13.
In reply, defendant asserts that plaintiff's arguments about Trees #5 and #29 do not
appear to be based on the protected tree report prepared by Robert Wallace, plaintiffs
own arborist, in 2012, and further do not show that plaintiff “was deprived of the
opportunity to litigate its case.” Dkt. 127 at 2. Defendant argues that while these
arguments bear no relevance to the issue before the Court, it is undisputed that Trees #5
and #29 were protected and healthy, as evidenced by plaintiff's “own facts and averments
in both the administrative proceedings and the State Action.” Id. at 2-4. Further,
defendant asserts that Jamgotchian does not apply here because the issue before the Court
is the preclusive effect of a final judgment on the merits by a state court, not an
administrative decision by a state agency. Id. at 4. In fact, defendant quotes

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘Oo’ JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

Jamgotchian, which states that the Full Faith and Credit doctrine requires federal courts
to “give the same preclusive effect to state court judgments as they would be given in the
state in which they are rendered.” Id. at 5 (emphasis in reply) (quoting Jamgotchian, 93
F 4th at 1154). According to defendant, preclusion here “is based on the fact that the
issue of fairness underlying [plaintiff's] due process and declaratory relief claims was
fully and fairly litigate[d] over the course of six to seven years in the State Action,” and
plaintiff presented the fairness issue for decision by the Superior Court. Dkt. 127 at 5-6.
Thus, defendant asserts that the Court may give preclusive effect to a state court
proceeding, even when the federal action involves a § 1983 claim. Id. at 6-8. Finally,
defendant argues that plaintiff's new claim for fabrication of evidence should nonetheless
be dismissed, as the classification of the trees as protected was both conceded by
plaintiff's own expert and determined in the state court proceedings. Id. at 8-9.
Until the TAC, plaintiff had argued that its contractor accidentally removed three
protected trees—Trees #5, #29, and #30. Plaintiff now alleges that its removal of the
three trees was actually permitted pursuant to the Protected Tree Ordinance. However, it
is not disputed that the reports plaintiff cites were available to plaintiff in connection with
the administrative hearings. If plaintiff sought to contest the classification of the three
removed trees, it could have done so in the administrative and state court proceedings.’

7 The Wallace Tree Report appears to categorize Tree #5 as a California Sycamore and
Trees #29 and #30 as California Live Oaks. Dkt. 124-11, Exh. K at AR0993-94.
Plaintiff alleges that Lorenzen “fabricated the evidence that [three] protected trees were
intentionally cut down when he would have known by plain view that at least [two] of the
trees were not protected.” Dkt. 125 at 12-13. To the extent plaintiff is suggesting that the
judgment below was obtained by fraud because of Lorenzen’s fabrication of evidence,
the rule as to fraud in California is that “[f]raud by a party will not undermine the
conclusiveness of a judgment unless the fraud was extrinsic, i.e., it deprived the opposing
party of the opportunity to appear and present his case.” Morales v. City of Los Angeles,
66 F. App’x 128, 129 (9th Cir. 2003) (quoting Eichman v. Fotomat Corp., 147 Cal. App.
3d 1170, 1175 (Ct. App. 1983)). Because the fabrication of evidence constitutes intrinsic
fraud, Lorenzen’s alleged fabrication of evidence may not invalidate the judgment. See
Cedars-Sinai Med. Ctr. v. Superior Ct., 18 Cal. 4th 1, 10 (1998) (“[A] final judgment may
not be directly attacked and set aside on the ground that evidence has been suppressed,
concealed, or falsified; in the language of the cases, such fraud is ‘intrinsic’ rather than

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O° JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

In addition, plaintiff's new allegations appear to contradict its own allegations in the prior
complaints that conceded that the three trees in question were improperly removed. See
TAC 4 21 (“Tree 29 is not [a] protected Black Walnut - it is a[n] unprotected Wild
Lilac|.]”); see also TAC § 26 (“Tree 5 was properly removed so as to permit [p]laintiff’s
other permits to be properly complied with to proceed with the development of the
property and to permit access to the property from the front gate entrance to the otherwise
landlocked property.”); TAC § 28 (“Tree 5 was not identified as one of the Sycamores
that are protected as many Sycamores are unprotected. And this Sycamore has no leaves
rendering its status as a Sycamore unlikely.”): TAC § 30 (“It was alleged by [d]efendant
that Tree 30 was improperly removed. It is identified by snapshot in the Wallace Report
but it is depicted in a lush area where it cannot be shown that any tree that was removed
would affect the holistic woodland requirements of the City of Los Angeles.”).
In its December 11, 2023 order, the Court specifically directed plaintiff to allege
with particularity how plaintiff was denied the opportunity to fully and fairly litigate its
due process claim in the state court proceedings. While plaintiff has added allegations in
the TAC regarding Lorenzen’s alleged misclassification of the removed trees, plaintiff
has not offered any new factual support for its contention that it did not have a full and
fair opportunity to litigate its claims in the state court proceedings. Plaintiff relies upon
Jamgotchian to argue that the Court may not give preclusive effect to an administrative
agency decision. However, the issue before the Court is whether preclusive effect should
be given to a state court final judgment on the merits. See dkts. 106, 117. The factual
issue of whether the three trees in question were protected was determined in the state
court proceedings. As the Court of Appeal stated in its opinion, it was “undisputed” that
plaintiff's contractor cut down “three protected trees that were not permitted for
removal|,|” namely, Trees #5, #29, and #30. Dkt. 96, RJN, Exh. C at 5. Instead, plaintiff
argues that plaintiffs contractor removed the three protected trees accidentally. Id. at 2,
8, 12. Plaintiff may not now seek to relitigate the protected status of those trees. Because
plaintiff has not alleged facts that would permit the Court to conclude that plaintiff was
deprived of a full and fair opportunity to litigate its due process claim in the state court
proceedings, the Court finds that plaintiff is precluded from asserting its due process

“extrinsic.’”); see also Dixon v. State Bar of California, 32 F. App’x 355, 356-57 (9th Cir.
2002).

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL ‘Oo’ JS-6
Case No. 2:16-cv-07148-CAS (AGRx) Date April 11, 2024
Title SULLIVAN EQUITY PARTNERS, LLC V. CITY OF LOS ANGELES, ET AL.

claim in this action. Accordingly, the Court GRANTS defendant’s motion to dismiss
plaintiffs due process claim with prejudice.
B. The Second Claim of the TAC Also Fails
Because plaintiff's first claim for relief is barred by the doctrine of issue
preclusion, plaintiff's second claim for declaratory relief also fails. Accordingly, the
Court GRANTS defendant’s motion to dismiss plaintiff's claim for declaratory relief
with prejudice.
V. CONCLUSION
In accordance with the foregoing, the Court GRANTS defendant’s motion to
dismiss the TAC with prejudice.
IT IS SO ORDERED.
—_— □□ □
Initials of Preparer CMJ

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9986442. Public record. Not legal advice.