Petition for Writ of Certiorari — Otto L. Haselhoff, Individually and as Trustee, Petitioner v. City of Santa Monica, California
Supreme Court briefOct 17, 2024
Ask Donna
What actually matters in this document.
Text
No. _______
IN THE
Supreme Court of the United States
Otto Haselhoff, individually and as trustee of
the Otto and Lara Haselhoff Family Trust
dated July 27, 2006, and assignee of Greg
Briles individually and/or partner/trustee,
Petitioner,
v.
City of Santa Monica, California
Respondent.
On Petition for a Writ of Certiorari to the
Court of Appeal of the State of California
Second Appellate District, Division Two
PETITION FOR A WRIT OF CERTIORARI
MICHAEL M. BERGER*
*Counsel of Record
MANATT, PHELPS &
PHILLIPS
2049 Century Park East,
Suite 1700
Los Angeles, CA 90067
(310) 312-4000
mmberger@manatt.com
OTTO L. HASELHOFF
Law Offices of Otto
L. Haselhoff, PC
201 Wilshire Blvd.,
Second Floor
Santa Monica, CA
90401
(800) 667-1880
Otto@OLHPC.com
Counsel for Petitioner
-i-
QUESTIONS PRESENTED
The City of Santa Monica placed a “historic”
designation on a home owned by Petitioner’s
predecessor without ever providing notice of either
the hearing or the outcome of the hearing.
Proceeding without notice raises serious due
process issues, both procedural and substantive, as
well as a taking of property without just
compensation.
The California courts exacerbated the situation
by taking “judicial notice” of “facts” contrary to the
complaint and precluding discovery or trial on the
merits, thus denying Petitioner the opportunity to
expose the errors in those judicially noticed “facts.”
Those courts then applied an extremely stringent
statute of limitations that, in defiance of the
Supremacy Clause (U.S. Const., Art. VI, cl. 2),
purported to eliminate federal constitutional
claims.
Question 1: When government acts without
notice in a way that seriously impacts the rights of
citizens, does the lack of statutory and
constitutionally required notice deprive the victim
of property without due process of law?
Question 2: When a government agency seeks to
declare property “historic” and then purports to rule
on its own request, has it violated the property
owner’s Seventh Amendment right to a jury trial?
Question 3: Is certiorari necessary because
California has (a) conflicted with this Court’s recent
- ii Seventh Amendment analysis in SEC v. Jarkesy,
144 S.Ct. 2117 (2024) and Chrysafis v. Marks, 141
S.Ct. 2482 (2021) that people cannot be the judge in
their own case; (b) conflicted with this Court’s
recent decision in Corner Post, Inc. v. Board of
Governors, 144 S.Ct. 2440 (2024) regarding the
accrual of causes of action and consequent
application of statutes of limitation; (c) decided a
case based on judicially noticed “facts” while
denying either discovery or trial on the merits,
conflicting with Garner v. Louisiana, 368 U.S. 157
(1961); and (d) continues to ignore this Court’s line
of regulatory takings decisions, based on Penn
Central Transp. Co. v. City of New York, 438 U.S.
104 (1978) and Lucas v. South Carolina Coastal
Council 505 U.S. 1003 (1992), while charting its
own more restrictive course on this federal
constitutional issue for which this Court’s decisions
provide a floor?
- iii PARTIES TO THE PROCEEDING
Petitioner Otto Haselhoff, acting individually
and as trustee of the Otto and Lara Haselhoff
Family Trust dated July 27, 2006, and as assignee
of Greg Briles individually and as partner and/or
trustee, is a resident of Santa Monica, California
and the current owner of the property that is the
subject of this litigation.
The City of Santa Monica, California, is a
California municipal corporation.
RELATED CASES
Otto Haselhoff, individually and as trustee, etc.,
no. 19SMCV00850. Los Angeles Superior Ct.
Judgment entered May 27, 2022.
Otto Haselhoff, individually and as trustee, etc.,
no. B322168. California Court of Appeal, Second
District, Div. Two. Opinion filed May 7, 2024.
Otto Haselhoff, individually and as trustee, etc.,
no. S285475, California Supreme Court. Order
entered July 24, 2024.
- iv -
TABLE OF CONTENTS
Page
PETITION FOR A WRIT OF CERTIORARI ........ 1
INTRODUCTION .................................................. 1
OPINIONS BELOW .............................................. 4
JURISDICTION..................................................... 4
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED.................................... 4
STATEMENT OF THE CASE............................... 5
A.
Petitioner Owns a Home in Santa
Monica .................................................... 5
B.
Santa Monica Decides to
“Landmark” the Property, but
Violates All Rules (Local, State,
and Constitutional) Regarding
Notice to the Property Owner ............... 5
C.
Trial Court Proceedings ........................ 6
D.
Proceedings on Appeal........................... 8
REASONS FOR GRANTING CERTIORARI ....... 9
I.
TAKING JUDICIAL NOTICE OF
CONTESTED FACTS AND THEN
DECIDING THE CASE ON THOSE
“FACTS” WITHOUT EITHER
DISCOVERY OR TRIAL IS A DENIAL
OF DUE PROCESS ............................... 9
-vII.
GOVERNMENT ACTION DONE
WITHOUT NOTICE DENIES DUE
PROCESS, IS VOID, AND IS SUBJECT
TO ATTACK AT ANY TIME ............... 13
A.
Notice Is The Key To
Due Process .......................... 13
B.
The City’s Failure To
Provide Notice Made Its
Actions Void And
Subject To Attack At
Any Time, Without
Regard To Statutes Of
Limitation ............................ 14
C.
Serendipitous
Acquisition of
Knowledge is Not the
Legal Equivalent of the
Government Providing
Formal Notice That
Satisfies Due Process........... 16
III.
THE COURT OF APPEAL’S TAKINGS
ANALYSIS CONFLICTS WITH THIS
COURT ................................................. 19
IV.
THE CALIFORNIA COURTS IGNORED
THE FEDERAL CIVIL RIGHTS ACT
(42 U.S.C. § 1983) ............................... 22
V.
THE COURT SHOULD GRANT
CERTIORARI TO ENSURE THAT THE
CONSTITUTION PREVAILS OVER
STATUTES .......................................... 23
A.
The Constitution is
paramount............................ 25
- vi B.
The Just Compensation
Clause is a
Constitutional
Guarantee that This
Court has held to be
both Self-Executing and
Irrevocable ........................... 29
VI.
THE CALIFORNIA SYSTEM DENIES
THE SEVENTH AMENDMENT RIGHT
TO JURY TRIAL. THE SEVENTH
AMENDMENT SHOULD BIND THE
STATES................................................ 33
VII.
CALIFORNIA LAW CONFLICTS WITH
THIS COURT’S DECISIONS
REGARDING THE ACCRUAL OF
STATUTES OF LIMITATION ............ 37
CONCLUSION .................................................... 38
- vii APPENDIX
Court of Appeal opinion in Haselhoff v. City
of Santa Monica (May 7, 2024) ..….. App. 1
Trial court judgment………………….App. 35
Court of Appeal Order Denying
Rehearing (May 28, 2024)…........…. App. 69
Cal. Supreme Court Order Denying Review
(July 24, 2024)………………..…….... App. 70
Santa Monica ordinances……………App. 72
- viii TABLE OF AUTHORITIES
FEDERAL CASES
Agins v. City of Tiburon,
447 U.S. 255 (1981) ......................................... 19
American Legion v. American Humanist Assn.,
139 S.Ct. 2067 (2019) ...................................... 23
Arkansas Game & Fish Comm'n v. United States,
568 U.S. 23 (2012) ........................................... 31
Board of Regents v. Roth,
408 U.S. 564 (1972) ......................................... 14
Bracy v. Gramley,
520 U.S. 899 (1997) ......................................... 24
Brown-Forman Distillers Corp. v. New York State
Liquor Auth.,
476 U.S. 573 (1986) ......................................... 32
Burnett v. Grattan,
468 U.S. 42 (1984) ........................................... 22
Cedar Point Nursery v. Hasid,
141 S.Ct. 2063 (2021) ...............................1, 2, 21
City of Monterey v. Del Monte Dunes,
526 U.S. 687 (1999) ......................................... 22
Cohens v. Virginia,
19 U.S. 264 (1821) ........................................... 27
Corner Post, Inc. v. Board of Governors,
144 S.Ct. 2440 (2024) .................................. 2, 38
Dolan v. City of Tigard,
512 U.S. 374 (1994) ......................................... 21
- ix Duncan v. Louisiana,
391 U.S. 145 (1968) (dissenting opinion)........ 36
Elliott v. Peirsol’s Lessee,
26 U.S. 328 (1828) ........................................... 15
First English Evangelical Lutheran Church v.
County of Los Angeles,
482 U.S. 304 (1987) ......................1, 2, 21, 30, 31
Garner v. Louisiana,
368 U.S. 157 (1961) ..................................... 2, 11
Hodel v. Irving,
481 U.S. 704 (1987) ......................................... 20
Horne v. Dept. of Agriculture,
576 U.S. 350 (2015) ......................................... 31
Jacobs v. United States,
290 U.S. 13 (1933) ........................................... 25
Knick v. Township of Scott,
588 U.S. 180 (2019) ....................................30, 31
Livingston v. Moore,
7 Pet. [32 U.S.] 469 (1833) .............................. 36
Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992) ..............................2, 19, 20
Lynch v. Household Fin. Corp.,
405 U.S. 538 (1972) ......................................... 22
Malloy v. Hogan,
378 U.S. 1 (1964) ............................................. 36
Marbury v. Madison,
5 U.S. 137 (1803) ............................24, 25, 28, 32
Maryland v. Louisiana,
451 U.S. 725 (1981) ......................................... 24
-xMcCulloch v. Maryland
17 U.S. 316 (1819) ................................24, 26, 28
Minneapolis & St. Louis R.R. Co. v. Bombolis,
241 U.S. 211 (1916) ......................................... 36
Missouri v. Lewis,
101 U. S. 22 (1879) .......................................... 36
Mitchum v. Foster,
407 U.S. 225 (1972) ......................................... 22
Monongahela Nav. Co. v. United States,
148 U.S. 312 (1893) ....................................29, 31
Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306 (1950) ..................................... 1, 13
Murr v. Wisconsin,
137 S.Ct. 1933 (2017) ...................................... 21
Mutual Pharmaceutical Co., Inc. v. Bartlett,
570 U.S. 472 (2013) ......................................... 25
Nollan v. California Coastal Commn.,
483 U.S. 825 (1987) ......................................... 20
Nollan v. California Coastal Commn.,
483 U.S. 827 (1987) ........................................... 1
Ohio Bell Tel. Co. v. Pub. Util. Commn.,
301 U.S. 292 (1937) ....................................11, 12
Olson v. United States,
292 U.S. 246 (1934) ......................................... 29
Pakdel v. City & County of San Francisco
(2021) 141 S.Ct. 2226 ...................................... 22
Palazzolo v. Rhode Island,
533 U.S. 606 (2001) ......................................... 32
- xi Penn Central Transp. Co. v. City of New York,
438 U.S. 104 (1978) ......................................... 21
Phelps v. United States,
274 U.S. 341 (1927) ....................................25, 27
SEC v. Jarkesy,
144 S.Ct. 2117 (2024) .................................. 2, 34
Sheetz v. County of El Dorado,
601 U.S. 267 (2024) ........................................... 1
Simmons v. South Carolina,
512 U.S. 154 (1994) ......................................... 23
Twining v. New Jersey,
211 U.S. 78 (1908) ........................................... 36
United States v. Jones,
565 U.S. 400 (2012) ......................................... 29
United States v. Lee,
106 U.S. 196 (1882) ......................................... 32
United States v. Wong,
575 U.S. 402 (2015) ......................................... 37
United Student Aid Funds, Inc. v. Espinosa,
559 U.S. 260 (2010) ......................................... 15
Walker v. Sauvinet,
92 U.S. 90 (1875) ............................................. 36
West Virginia State Board of Education v.
Barnette,
319 U.S. 624 (1943) ..............................23, 28, 33
Wilkins v. United States,
598 U.S. 152 (2023) ......................................... 37
Williams v. Washington,
no. 23-191, (argued Oct. 7, 2024) ................... 23
- xii STATE CASES
County of San Diego v. Gorham,
186 Cal.App.4th 1215 (2010) .......................... 18
Meyer v. City of San Diego
121 Cal. 102 (1898) .......................................... 35
Miller v. Board of Medical Quality Assurance,
193 Cal.App.3d 1371 (1987) .......................15, 18
FEDERAL STATUTES
28 U.S.C. § 1257(a) ................................................. 4
42 U.S.C. § 1983................................................ 7, 22
STATE STATUTES
Cal. Code Civ. Proc. §1094.6 ................................ 16
Cal. Evid. Code § 452 .............................................. 9
Cal. Gov. Code § 65009 ..................................2, 7, 18
Santa Monica Mun. Code
§9.25.020 .......................................................... 16
§9.56.120 .......................................................... 16
§ 9.56.120(I) ....................................................... 2
§ 9.56.120(D) ...................................................... 2
§ 9.56.120(H)...................................................... 2
§9.56.260 .................................................2, 16, 17
RULES
Fed. R. Evid. 201..................................................... 9
REGULATIONS
Eng. Rep. 807 ........................................................ 29
CONSTITUTIONAL PROVISIONS
Bill of Rights .................................. 24, 28, 33, 35, 36
- xiii Cal. Const. Art. 1 § 7 .............................................. 2
Cal. Const. Art. I § 19 ............................................. 3
U.S.. Const. amend. V 3, 4, 20, 27, 29, 30, 31, 32, 38
U.S. Const. amend. VI cl. 2 .......................26, 27, 28
U.S. Const. amend. VII......................2, 5, 33, 35, 36
U.S. Const. amend. XIV.......................................... 2
U.S. Const. amend. XIV............. 4, 22, 24, 27, 35, 36
U.S. Const. art. I § 8 cl. 3 ..................................... 32
U.S. Const., art. VI, cl. 2..................................24, 27
U.S. Constitution .......................................22, 23, 24
OTHER AUTHORITIES
Amar, Akhil Reed, Philadelphia Revisited:
Amending the Constitution Outside Article V,
55 U. Chi. L. Rev. 1043, 1100 (1988) .............. 24
Anita Gates, Kathryn Grayson, Operatic Film
Star, Dies at 88 (Feb 18, 2010)
https://www.nytimes.com/2010/02/19/movies/19
grayson.html ...................................................... 5
Black’s Law Dictionary 1822 (3d ed.1933) .......... 14
Dennis McLellan, Kathryn Grayson dies at 88;
MGM singing star in 1940s, 50s (Feb. 19, 2010
12 AM PT)
https://www.latimes.com/local/obituaries/la-mekathryn-grayson19-2010feb19-story.html........ 5
Entick v. Carrington,
95 Eng. Rep. 807.............................................. 29
https://www.youtube.com/watch?v=2wMSr-ohbC4 5
- xiv Kanner, Gideon, Just How Just is Just
Compensation? 48 Notre Dame L. Rev. 786, 784
(1973) ............................................................... 24
Nemo iudex in causa sua,
https://en.wikipedia.org/wiki/Nemo_iudex_in_c
ausa_sua .......................................................... 35
Restatement (Second) of Judgements § 12 .......... 15
UChicago HELP, Univ. of Chicago
https://help.uchicago.edu/ ............................... 35
Wolfram, Charles W., The Constitutional History
of the Seventh Amendment, 57 Minn. L. Rev.
639, 745 (1973) ................................................ 33
-1PETITION FOR A WRIT OF CERTIORARI
Petitioners respectfully seek a writ of certiorari
to review a judgment of the California Court of
Appeal, Second Appellate District, Division Two.
INTRODUCTION
The treatment meted out below to Petitioner
Haselhoff and his predecessor, Greg Briles,
demonstrates California’s continued refusal to
adhere to constitutional precepts laid down by this
Court.
As the law of regulatory takings began to
develop, this Court had to repeatedly reprimand
California for ignoring both settled law and the
Constitution. (See First English Evangelical
Lutheran Church v. County of Los Angeles, 482 U.S.
304, 310-11 (1987) (California decisions are
“inconsistent[] with the requirements of the Fifth
Amendment”); Nollan v. California Coastal
Commn., 483 U.S. 827, 839 (1987) (California
inconsistent with all other state courts and this
Court).) From these early cases down through the
present day decisions in Sheetz v. County of
El Dorado, 601 U.S. 267 (2024) and Cedar Point
Nursery v. Hasid, 141 S.Ct. 2063 (2021), California
has continued to require correction to bring it in
line with paramount federal constitutional law.
This case continues California’s cavalier
attitude toward the rights of its property owning
citizens. It has denied due process of law in
manifold ways, including the deprivation of
property without notice (Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 313
-2(1950)), “proof” of facts by judicial notice while
denying discovery and trial on the merits (Garner
v. Louisiana, 368 U.S. 157 (1961)), allowing
municipalities to sit as judges in their own matters
while denying the Seventh Amendment right to a
jury trial (SEC v. Jarkesy, 144 S.Ct. 2117 (2024)),
imposing a radically short statute of limitations
(Corner Post, Inc. v. Board of Governors, 144 S.Ct.
2440 (2024)), and continuing to impose its own
truncated view of regulatory takings law (Lucas v.
South Carolina Coastal Council, 505 U.S. 1003,
1015 (1992); Cedar Point Nursery v. Hassid, 141
S.Ct. 2063, 2071 (2021)). Each of these issues is
presented here for this Court’s review.
This case involves intertwined issues of both
notice and substance.
Notice. Much in the case depends on when (and
whether) notice was given to the owner of property
that the City (1) intended to consider declaring his
property a “landmark,” (2) held a hearing at which
such landmarking was considered, (3) reported the
results of that hearing to the owner, and
(4) recorded the results of that hearing. Such notice
is mandated by City ordinances (Santa Monica
Municipal Code §§ 9.56.120(D), 9.56.120(H),
9.56.120(I), 9.56.260 (see App. 72.)) as well as
fundamental requirements of due process of law
under both the California (Art. 1, § 7) and United
States (14th Amendment) Constitutions.
Notice is critical for interrelated reasons.
First, both lower courts applied the stringent
statute of limitations in Cal. Gov. Code § 65009,
-3-
dismissing the action for the supposed failure of
the property owner to sue the City within 90
days of its alleged landmarking action.
However, the 90 days could not begin to run
without proper notice being served in the
manner required by statute and local
ordinance. Second, the California courts also
held that the property owner had waived his
right to sue because he failed to take an
administrative appeal from the Landmarks
Commission to the City Council. But waiver is
contingent on the injured party receiving
properly served notice of the offending action.
Here, it was repeatedly alleged that there was
no notice and hence no deadline for that
administrative appeal.
Substance. The upshot of the City’s
landmarking actions was to deprive the owner
of property rights guaranteed by both the 5th
Amendment to the United States Constitution
and Article I, § 19 of the California
Constitution. The Court of Appeal’s analysis of
these issues is contrary to controlling law laid
down by this Court. Moreover, the Court of
Appeal’s decision is based on improperly taking
“judicial notice” not only of the existence of
extra-record documents but of the truth of
statements in those extra-record documents to
contradict allegations in the complaint, thus
denying Haselhoff due process of law.
-4-
OPINIONS BELOW
The California Court of Appeal’s unpublished
opinion is reproduced at App. 1. The unpublished
Order denying rehearing is reproduced at App. 69.
The California Supreme Court’s unpublished Order
denying review is reproduced at App. 70. The trial
court’s judgment and order dismissing the case is
reproduced at App. 35.)
JURISDICTION
The California Court of Appeal filed its opinion
on May 7, 2024. A timely petition for rehearing was
denied on May 28, 2024. A timely petition to the
California Supreme Court was denied on July 24,
2024. This Court has jurisdiction under 28 U.S.C.
§ 1257(a).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fifth Amendment to the United States
Constitution provides: “... nor shall private property
be taken for public use without just compensation.”
The Fourteenth Amendment to the United
States Constitution provides: “No State shall make
or enforce any law which shall abridge the
privileges or immunities of citizens of the United
States; nor shall any State deprive any person of
life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the
equal protection of the laws.”
-5The Seventh Amendment to the United States
Constitution provides: “In Suits at common law,
where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved
….”
Local ordinances are reproduced at App. 72-74.
STATEMENT OF THE CASE
A.
Petitioner Owns a Home in Santa
Monica.
The property in question was, for many years,
the home of singer/actress Kathryn Grayson. When
she died, her passing was covered by all major news
outlets as well as social media.1 The fact of her
death was widely known. Thereafter, her estate
sold the property to Greg Briles. Briles later sold
the home and its surrounding grounds to Petitioner
Haselhoff.
B.
Santa
Monica
Decides
to
“Landmark” the Property, but
Violates All Rules (Local, State, and
Constitutional) Regarding Notice to
the Property Owner.
The City of Santa Monica’s Landmarks
Commission decided that it wanted to preserve the
property and—seven months after her death—had
See, e.g., https://www.latimes.com/local/obituaries/la-mekathryn-grayson19-2010feb19-story.html;
https://www.nytimes.com/2010/02/19/movies/19grayson.html;
https://www.youtube.com/watch?v=2wMSr-ohbC4.
1
-6one of its staff people submit a request to itself to
declare the property a historic landmark.
Although neither Grayson nor her estate owned
the property any longer, the City claims that it sent
notices to her (either individually or as trustee,
although she had been deceased for months) that a
hearing regarding the possible landmarking of the
property would occur. Why notice would have been
“sent” to a person whose passing had been widely
publicized was never explained. No notice was ever
sent to Briles, although the Grayson Estate had
sold him the property.
A “hearing” was held at which the Commission
decided to authorize declaring the property a
landmark. It is noteworthy that the request to
declare a landmark and the allegedly sent notices
referred only to the home, and not the surrounding
parcel. Nonetheless, the landmark declaration
covered both the home and the lots. That is
important because, under Santa Monica law, the
landmark designation froze the ability to develop
other areas of the large lot (or even plant on them)
without Landmarks Commission approval.
C.
Trial Court Proceedings.
Years after the landmarking, Briles sold the
property to Haselhoff and assigned any claims he
might have against Santa Monica for actions it had
taken against his property.
Haselhoff sued the City seeking, among other
things, mandate to set aside the landmarking, a
declaration that the landmarking was invalid, and
compensation for a taking of property without
-7compensation (both under the Constitution and 42
U.S.C. § 1983), noting total non-compliance with all
ordinances regarding notice as well as the total
ignorance of his assignor (Briles) as to anything to
do with the “hearing”. Although he timely asked the
City to prepare an Administrative Record (AR), the
City was tardy in doing so and the original
complaint was prepared without it. After receipt of
the AR, Haselhoff filed a First Amended Complaint
(FAC).
The FAC demonstrated how Santa Monica’s own
ordinances required that notice be given to the
owner of property slated for landmarking, as well
as the process and the hearing and the outcome of
the hearing. (See App. 72-74.) The FAC also showed
how none of those requirements was met by the
City.
The City demurred to the FAC, largely on
timeliness grounds. The City’s position was that
no one appealed the Landmarks Commission
determination to the City Council within 10 days,
as required by ordinance and then no one filed suit
within 90 days as required by Cal. Gov. Code
§ 65009. After many pleadings were exchanged
(described in some detail at App. 12-15), including
a proposed Second Amended Complaint (SAC), the
trial court sustained the demurrer without leave to
amend. (App. 64.)
Overlooked by the California courts was the fact
that Briles, the owner of the property and the one
who would have an interest in challenging the
result of the Landmarks Commission’s hearing,
was never provided either notice of the hearing or
-8of the result of the hearing, as alleged in both the
FAC and SAC.
While all that law and motion practice was going
on, the trial court precluded discovery.
Judgment was entered based on the demurrer,
followed by an appeal.
D. Proceedings on Appeal.
The Court of Appeal affirmed (App. 1) in an
opinion with manifold problems described in the
Petition for Rehearing. Prime among the
constitutional problems with that opinion was the
Court of Appeal’s extensive use of “judicial notice”
to heavily augment the “facts” used to analyze the
FAC and SAC. As discussed herein, that was
improper and denied Haselhoff due process of law.
Moreover, in deciding that suit was brought too
late, both lower courts misunderstood the duties
and obligations of the parties. Of the two primary
parties—the City and Briles—one had clear,
mandatory duties. The City had an obligation
imposed both as a matter of constitutional due
process of law and the Santa Monica Municipal
Code (App. 72) to provide notice of the filing of the
application, notice of the hearing, and notice of the
determination. It did none of these things.
Instead of holding the City to its obligations and
the consequences of ignoring them, the lower courts
held that Briles had been at fault for neither taking
an administrative appeal to the city council within
10 days of the Landmarks Commission action or
filing suit within 90 days. Ignored by the courts was
that Briles was provided no notice of the city’s acts
-9and thus could not have complied with those
stringent deadlines.
The case presented below (as here) involves
serious questions of constitutional import. The
issues were either ignored or improperly dealt with,
as shown in the Petition for Rehearing, which was
almost immediately denied. (App. 69.) So powerful
was the Court of Appeal’s antipathy to Petitioner
that it accused him of raising issues belatedly at
oral argument, when (as the Petition for Rehearing
extensively showed) they had been argued
expressly in the appellate briefs. (See App. 3, fn. 2.)
Haselhoff then filed a Petition for Review in the
California
Supreme
Court,
raising
the
constitutional issues brought here. That petition
was denied without opinion. (App. 70.)
This Petition followed.
REASONS FOR GRANTING CERTIORARI
I.
TAKING JUDICIAL NOTICE OF
CONTESTED FACTS AND THEN DECIDING
THE CASE ON THOSE “FACTS” WITHOUT
EITHER DISCOVERY OR TRIAL IS A
DENIAL OF DUE PROCESS.
Judicial notice is only proper when the facts so
noticed are not subject to dispute. (Fed. Rules of
Evid., Rule 201; Cal. Evid. Code § 452.) The trial
court understood this. Thus, when agreeing to take
judicial notice of the existence of some documents,
the trial court said:
“The court’s decision to judicially notice
the existence and filing of these documents is
- 10 not judicial notice of the truth of the
documents, the interpretation of any of these
documents or any findings of fact contained
therein.” (App. 42)
Nonetheless, the Court of Appeal augmented the
pool of facts it considered in reviewing this
dismissal via demurrer to “judicially notice”
numerous “facts” that were seriously disputed. (See
App. 3.) Indeed, they were used by the Court of
Appeal to counter allegations made in the FAC and
SAC and “resolve” such disputes in favor of the
defendant, thus essentially ignoring the complaint.
(See App. 3, fn. 2.)
Some things that the Court of Appeal “judicially
noticed” defied common sense. For example, the
Court of Appeal took judicial notice that the Estate
of Kathryn Grayson, the prior owner of the
property, supposedly sent a letter to the City
requesting a delay in the landmark hearing and
then later sent a representative (one Ms. Bartolo)
to the hearing. The Court of Appeal then purported
to discuss Bartolo’s “testimony” at the hearing,
including a comment that the Grayson Trust had a
“potential buyer” for the property who was
“supportive” of the landmarking. (App. 6.) All this
happened more than four months after the Grayson
Estate’s trustees had already sold the property to
Mr. Briles. Briles, the actual owner of the property,
knew nothing of the hearing, as the complaints
consistently alleged. A Petition for Rehearing was
filed, seeking to correct the factual misstatements
by the Court of Appeal, but it was denied without
comment. (App. 69.)
- 11 Such appellate judicial notice of facts which
were not judicially noticed by the trial court has
been repeatedly condemned by this Court as a
violation of due process of law. E.g., Ohio Bell Tel.
Co. v. Pub. Util. Commn., 301 U.S. 292 (1937);
Garner v. Louisiana, 368 U.S. 157 (1961).
In Garner, this Court disallowed the very
practice used by the Court of Appeal in this case,
i.e., permitting one party to “prove” its case by
judcial notice in the reviewing court without
allowing a trial court the opportunity to review the
evidence or even to consider the “evidence”
proffered by judicial notice:
“To extend the doctrine of judicial notice to
the length pressed by the respondent would
require us to allow the prosecution to do
through argument to this Court what it is
required by due process to do at the trial, and
would be to turn the doctrine into a pretext for
dispensing with a trial.” 368 U.S. at 173
(cleaned up).
In Ohio Bell, this Court described the proper
function of judicial notice:
“… notice, even when taken, has no other
effect than to relieve one of the parties to a
controversy of the burden of resorting to the
usual forms of evidence.” 301 U.S. at 301.
To go further, and use the judicially noticed
material to prove the facts, as was done here, is a
denial of due process. Ohio Bell, 301 U.S. at 300,
302. The type of judicial notice employed by the
Court of Appeal permits the decision maker to
- 12 “wander afield” and make decisions “without
reference to any evidence, upon proofs drawn from
the clouds.” Id. at 307.
In another case the Court of Claims put it aptly
in denying the use of “judicial notice” on appeal:
“Assuming arguendo that it would be
proper to take judicial notice of these
documents, the Government’s effort to inject
them at this [appellate] stage comes too late.
Judicial notice is merely a way of introducing
evidence without resort to the ordinary
formalities; it does not circumvent the
requirements of orderly judicial procedure,
and one of those requirements is that
appellate tribunals should ordinarily
consider only what has been properly
presented to the trier of fact below.” Turtle
Mountain Band of Chippewa Indians v.
United States, 490 F.2d 935, 945 (Ct. Cl.
1974) (cleaned up).
Due process of law recoils at what happened
below:
“Many controversies have raged about the
cryptic and abstract words of the Due Process
Clause, but there can be no doubt that, at a
minimum, they require that deprivation of
life, liberty or property by adjudication be
preceded by notice and opportunity for
hearing appropriate to the nature of the
case …. The fundamental requisite of due
process of law is the opportunity to be heard.
This right to be heard has little reality or
worth unless one is informed that the
- 13 matter is pending and can choose for
himself whether to appear or default,
acquiesce or contest.” Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 313
(1950) (cleaned up; emphasis added).
Haselhoff was subjected to a cascading series of
due process denials. They began when the City held
hearings that dealt with the subject property but
failed repeatedly to provide notice to Haselhoff’s
assignor (Briles) of what was going on. The trial
court magnified that deprivation when it refused to
allow discovery so that a full record could be
created. And the Court of Appeal capped off the
problem by accepting without question the
purported statements of Bartolo and Culotti and
using them to avoid dealing with the consistent—
and contrary—allegations in the FAC and SAC
about the events leading to this litigation.
Certiorari is needed to elevate due process of law to
its rightful place while lowering judicial notice to
the procedural rung on which it belongs.
II.
GOVERNMENT ACTION DONE WITHOUT
NOTICE DENIES DUE PROCESS, IS VOID,
AND IS SUBJECT TO ATTACK AT ANY
TIME.
A.
Notice Is The Key To Due Process.
Put simply, “notice must be such as is
reasonably calculated to reach interested parties.”
Mullane, 339 U.S. at 318. Thus, the key to due
process is reaching interested parties so they may
be heard. “It is a purpose of the ancient institution
- 14 of property to protect those claims upon which
people rely in their daily lives, reliance that must
not be arbitrarily undermined. It is a purpose of the
constitutional right to a hearing to provide an
opportunity for a person to vindicate those claims.”
Board of Regents v. Roth, 408 U.S. 564, 577 (1972).
There is no question that Briles (the actual
owner of the property at the time of the
“landmarking”) was not sent notice. If nothing else,
the complaint (in all its versions) so alleged, and
that is surely enough at the hearing on a demurrer.
All of the issues regarding notice—who gave
notice (including when and how), who received
notice (including when and how)—are contested
fact issues that require trial to determine. The
complaints allege that no notice was ever given. The
City asserts otherwise. Resolution requires trial.
B.
The City’s Failure To Provide
Notice Made Its Actions Void And
Subject To Attack At Any Time,
Without Regard To Statutes Of
Limitation.
It is settled law that a judicial body failing to
obtain jurisdiction over either the subject of the
action or the parties thereto will simply render a
void judgment that is open to attack at any time:
“A void judgment is a legal nullity. See
Black’s Law Dictionary 1822 (3d ed.1933); see
also id., at 1709 (9th ed. 2009). Although the
term ‘void’ describes a result, rather than the
conditions
that
render
a
judgment
unenforceable, it suffices to say that a void
- 15 judgment is one so affected by a fundamental
infirmity that the infirmity may be raised
even after the judgment becomes final. See
Restatement (Second) of Judgments 22
(1980); see generally id., § 12.” United
Student Aid Funds, Inc. v. Espinosa, 559 U.S.
260, 270 (2010).
See also Elliott v. Peirsol’s Lessee, 26 U.S. 328, 329
(1828) (if a court acts “without authority, its
judgments and orders are nullities”).
The same is true of an administrative body
acting in a quasi-judicial manner:
“Administrative orders are void when
rendered without fundamental jurisdiction
(or in excess of the agency’s statutory powers,
also referred to as in excess of its
jurisdiction.)” Miller v. Board of Medical
Quality Assurance, 193 Cal.App.3d 1371,
1379 (1987).
Here, the city’s Landmarks Commission failed
to obtain jurisdiction over either the property or its
owner by failing to notify the property owner of the
proceedings. The Commission failed in its
mandatory duty to notify the property owner and
thus failed to obtain jurisdiction to declare his
property a “landmark.” The Commission’s action
was thus void and subject to attack at any time. The
California courts ignored this fundamental rule.
- 16 C.
Serendipitous
Acquisition
of
Knowledge is Not the Legal
Equivalent of the Government
Providing Formal Notice That
Satisfies Due Process.
A number of the “facts” noted by the Court of
Appeal appear to be aimed at showing that Briles
or Haselhoff or both somehow “knew” that the City
had landmarked the property. But that is not the
issue. Nor was there any proof of either notice or
knowledge, as the case never went to trial. The real
issue here is whether the City provided the formal
notice that it was required to do by both state and
municipal law (i.e., Cal. Code Civ. Proc. §1094.6;
Santa Monica Mun. Code §§9.25.020, 9.56.120, and
9.56.260), as well as state and federal due process
requirements. As this Court explained:
“[T]he common knowledge that property
may become subject to government taking
when taxes are not paid does not excuse the
government from complying with its
constitutional obligation of notice
before taking private property. We have
previously stated the opposite: An interested
party’s knowledge of delinquency in the
payment of taxes is not equivalent to
notice that a tax sale is pending. It is at least
as widely known that arrestees have the
right to remain silent, and that anything
they say may be used against them, but that
knowledge does not excuse a police
failure to provide Miranda warnings.”
- 17 Jones v. Flowers, 547 U.S. 220, 232-33 (2006)
(cleaned up; emphasis added.)2
The opinion also incorrectly states that “there is
no contention that either the Grayson Trust or the
Briles–Culotti Partnership did not have notice.”
(App. 26.) This too incorrectly conflates “notice”
with “knowledge.” It also assumes there is
something important about two entities that had no
interest in the property (the Grayson Trust having
sold it to Briles more than four months earlier).
Moreover, both the FAC and the SAC clearly
alleged that no one was given notice of anything.
That was a major failing by the City: failure to give
formal notice of what it was doing and what it had
done, as required by law. (See App. 72.) Moreover,
anyone in the chain of title after the so-called
landmarking of the property would have no way of
actually verifying the “landmarking” because the
City failed to record that action, even though its
own ordinance requires that to be done. (See Santa
Monica Municipal Code § 9.56.260.) Recording, of
course, would have provided notice. But here there
was none. Thus, magnifying the general failure to
2 Assume, for example, that a nationally noted constitutional
scholar like Alan Dershowitz was arrested and then
questioned without being given his Miranda warning. Any
“evidence” obtained through that questioning—and any fruits
of
that
questioning—would
surely
be
excluded,
notwithstanding his obvious knowledge of constitutional law.
In similar fashion, one who is named as a defendant in a
complaint, but not served with summons, is not required to
respond to the complaint even if he “knows” about it. The
difference between knowledge and notice is clear and has
palpable consequences.
- 18 provide notice, the failure to record the action
precludes the City from relying on any sort of
presumed notice. Thus, who got notice, and when
and how, was a contested factual issue that
required trial.
The opinion does not confront the difference
between knowledge and notice. The difference
between knowledge and notice is a distinction that
matters because the law calls for following
statutory norms, not ascribing knowledge, which is
both questionable, unproved, and truly not the
point. That difference is legally critical. Without
proper, formal notice—expressly including Santa
Monica’s own municipal requirements (see App.
72)—being served in the required manner on the
proper parties entitled to be served, deadlines do
not begin to run.
When notice is constitutionally required and is
not provided, then the governmental action is void.
If it is void, then no limitation period applies.
See, e.g., County of San Diego v. Gorham, 186
Cal.App.4th 1215, 1225 (2010) (ensuing judgment
is void, and thus vulnerable to direct or collateral
attack “at any time.” (emphasis added)); Miller v.
Bd. of Med. Quality Assurance, 193 Cal.App.3d
1371, 1379 (1987) (same as to administrative
proceeding). Thus, whether any court has
recognized tolling in the context of Government
Code § 65009 (App. 50) is irrelevant. If the
government action is void, then it is subject to
unlimited challenge.
Nothing in the opinion below changes the fact
that the City knew Grayson was dead, knew she was
- 19 not the owner (either personally or as trustee),
knew there was a new owner, knew Bartolo was not
an attorney for the new owner, but nevertheless
filed a false application saying that Grayson Trust
was the owner, and that Grayson—by that time
long dead—knew of the application. Nothing in the
opinion changes the fact that the FAC, proposed
SAC, and all the allegations therein allege that the
City never gave the owner of the property notice of
anything.
In fact, the failure to give notice continues to this
day and as alleged in the FAC, the SAC and the
briefing below, Haselhoff, who sues as Briles’s
assignee following his purchase of the property, still
has not been provided official notice of anything and
that, too, was alleged.
III.
THE COURT OF APPEAL’S TAKINGS
ANALYSIS CONFLICTS WITH THIS COURT.
Regularly, in the modern era of takings law, this
Court has repeated that, if a regulation deprives
property owners of the “economically viable use” or
“economically beneficial or productive use” of their
property, a taking has occurred. (The first
formulation appeared in Agins v. City of Tiburon,
447 U.S. 255, 260 (1981); the latter refinement
appeared in Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 1015 (1992).) In Lucas, the
Court was so focused on the impact of government
action on the use remaining to private property
owners, that it used the word “use” 37 times
(generally in conjunction with the words
“economically
productive”
or
“economically
- 20 beneficial”). See 505 U.S. at 1016-19, 1027-30. Thus,
contrary to the impression given in the Court of
Appeal’s opinion (App. 31), the allowance of “some”
use is not constitutionally sufficient, it must be
economically productive. And that is a question of
fact that cannot be resolved without evidence.
By focusing on “productive” or “beneficial” use,
Lucas clearly expressed the idea that the
Constitution protects more than the ability to
simply hold property in some theoretical manner.
Indeed, Mr. Lucas himself was said to be able to
minimal (though noneconomic) use of his property,
but that was not sufficient to satisfy the Fifth
Amendment. See Lucas, 505 U.S. at 1044
(Blackmun, J., dissenting).
So, here, the City’s action—mandated by its
ordinance—in freezing the ability of Briles to use or
improve or remodel or repair his property in any
way took (at least temporarily) his property, and
did so as soon as the application was filed, without
either a hearing or just compensation.
“Property” consists of many things. Indeed, the
concept is so complex that this Court has repeatedly
used the law professors’ “bundle of sticks” analogy
to illustrate it, concluding that either the taking of
an entire “stick” (or right) from the “bundle” or the
taking of a slice through all the “sticks” violates the
Fifth Amendment’s Just Compensation Clause.
Indeed, it is hard to pick up a property decision by
this Court and not find some reference to the bundle
of sticks as an explanation for the holding. E.g.,
Hodel v. Irving, 481 U.S. 704, 716 (1987); Nollan v.
California Coastal Commn., 483 U.S. 825, 831
- 21 (1987); Dolan v. City of Tigard, 512 U.S. 374, 393
(1994); Murr v. Wisconsin, 137 S.Ct. 1933, 1952
(2017) (Roberts, C.J., dissenting); Cedar Point
Nursery v. Hassid, 141 S.Ct. 2063, 2071 (2021).
Freezing the use of Briles’s property was a
temporary taking of his right of use. See First
English, 482 U.S. 304. The extent of the
impairment, and the compensation due, is an issue
of fact for trial. Penn Central Transp. Co. v. City of
New York, 438 U.S. 104 (1978).
The decision here needs to blend with the
Court’s decisions generally protecting the rights of
private property owners. The Court recently
summarized that history this way:
“As John Adams tersely put it,
‘[p]roperty must be secured, or liberty
cannot exist.’ Discourses on Davila, in 6
Works of John Adams 280 (C. Adams ed.
1851). This Court agrees, having noted that
protection of property rights is ‘necessary to
preserve freedom’ and ‘empowers persons to
shape and to plan their own destiny in a
world where governments are always eager
to do so for them.’” Cedar Point, 594 U.S. at
147.
For many decades, California has acted on the
belief that it is free to set its own parameters for
how it treats its property owning citizens. It has
consistently disregarded this Court’s clear
holdings, even to the point that (until this Court
corrected the situation in First English), property
rights cases were routinely filed in federal court
because the California state courts provided no
- 22 compensation remedy. See, e.g., City of Monterey v.
Del Monte Dunes, 526 U.S. 687 (1999). It is time to
return California to the American constitutional
fold. Indeed, it is long past time.
IV.
THE CALIFORNIA COURTS IGNORED THE
FEDERAL CIVIL RIGHTS ACT (42 U.S.C.
§ 1983).
Pursuant to the Fourteenth Amendment,
Congress acted to provide protection for rights
guaranteed by the U.S. Constitution when it
enacted 42 U.S.C. § 1983. Petitioner invoked this
statutory remedy when Santa Monica ignored its
constitutional obligation to compensate him for
property taken for public use. He asked the courts
to compel Santa Monica to abide by the federal
constitutional guarantee of prompt payment of just
compensation for property acquired by eminent
domain. The California courts refused.
Section 1983
was
intended
to
provide
“a uniquely federal remedy” (Mitchum v. Foster,
407 U.S. 225, 239 (1972)) with “broad and sweeping
protection” (Lynch v. Household Fin. Corp., 405
U.S. 538, 543 (1972) (quoting with approval)) so
that individuals in a wide variety of factual
situations are able to obtain a federal remedy when
their federally protected rights are abridged
(Burnett v. Grattan, 468 U.S. 42, 50, 55 (1984)).
Contrary to the decision below, there is no strict
exhaustion requirement under Section 1983,
merely a need for the government position to be
clear. (Pakdel v. City & County of San Francisco
- 23 (2021) 141 S.Ct. 2226. See also Williams v.
Washington, no. 23-191, argued Oct. 7, 2024.)
California simply ignored this key federal
statute designed to compel local governmental
compliance with the federal Constitution. Ignoring
a directly applicable federal statute is reason
enough for this Court to review this errant decision.
V.
THE COURT SHOULD GRANT CERTIORARI
TO ENSURE THAT THE CONSTITUTION
PREVAILS OVER STATUTES.
Under our system of government, the
Constitution is preeminent. It cannot be undercut
by statutes. The issue here is whether a
constitutional provision held by this Court to be
“self-executing,” i.e., requiring no Congressional
action to enliven it, can be restricted or eliminated
by a mere statute—particularly, as here, a state
statute. In brief, it cannot.
Our Constitution provides a baseline of minimal
protection to all the rights of all citizens, with
individual states having the discretion to provide
more, but never less protection. Simmons v. South
Carolina, 512 U.S. 154, 174 (1994); see West
Virginia State Board of Education v. Barnette, 319
U.S. 624, 638 (1943). Justice Kavanaugh explained
it this way: “the Constitution sets a floor for the
protection of individual rights. The constitutional
floor is sturdy and often high, but it is a floor. Other
. . . government entities generally possess authority
to safeguard individual rights above and beyond the
rights secured by the U.S. Constitution.” American
- 24 Legion v. American Humanist Assn., 139 S.Ct.
2067, 2094 (2019) (Kavanaugh, J., concurring).
Thus, if there is a role for state courts and state
laws, this is it: providing more protection than the
U.S. Constitution mandates. As Professor Akhil
Amar summarized it, “the federal constitution
stands as a secure political safety net—a floor below
which state law may not fall.”3 As this Court plainly
expressed it, “The American people have declared
their Constitution and the laws made in pursuance
thereof to be supreme.” McCulloch, 17 U.S. at 432.)
Beyond that, as the Court classically held in
Marbury v. Madison, 5 U.S. [1 Cr.] 137, 177 (1803),
it is the Court’s job to see that other levels of
government remain true to the Constitution. That
would include protecting the rights of property
owners from the depredations of state and local
government. Here, that is done by providing
protection against state agencies and officials,
regardless of what state law might otherwise say.
U.S. Const., art. VI, cl. 2. “It is basic to this
constitutional command that all conflicting state
provisions be without effect.” Maryland v.
Akhil Reed Amar, Philadelphia Revisited: Amending the
Constitution Outside Article V, 55 U. Chi. L. Rev. 1043, 1100
(1988) (emphasis added). See Bracy v. Gramley, 520 U.S. 899,
904 (1997) (“the Due Process Clause . . . establishes a
constitutional floor”); see also Gideon Kanner, Just How Just
is Just Compensation? 48 Notre Dame L. Rev. 786, 784 (1973):
“it seems safe to say that the Constitution—or at least the Bill
of Rights—was the product of the framers’ fear of an
overreaching government, and their desire to protect
individual citizens from governmental excesses. . . . [T]he
purpose of the . . . Bill of Rights [] was to protect the people
from the government, not vice versa.”
3
- 25 Louisiana, 451 U.S. 725, 746 (1981); Mutual
Pharmaceutical Co., Inc. v. Bartlett, 570 U.S. 472,
480 (2013).
Because the right to just compensation arises
directly from the Constitution, neither Congress
nor local legislators can abrogate this right. As the
Court put it in Jacobs v. United States, 290 U.S. 13,
17 (1933), “the right to just compensation could not
be taken away by statute or be qualified ….” In
Jacobs, the question was whether the failure of
Congress to provide for interest on awards of just
compensation
could
override
the
general
Constitutional
command
for
payment
of
compensation for takings, as interest is part of just
compensation. The Court answered curtly that it
could not, because the Constitution prevailed in
protecting the rights it guarantees. In other words,
“acts of Congress are to be construed and applied in
harmony with and not to thwart the purpose of the
Constitution.” Phelps v. United States, 274 U.S.
341, 344 (1927). The same must be true of state and
local legislation.
A.
The Constitution is paramount.
The Constitution is our paramount authority.
Marbury v. Madison, 5 U.S. 137, 176-77 (1803):
“The powers of the legislature are
defined, and limited; and that those limits
may not be mistaken, or forgotten, the
constitution is written. [¶] …. Certainly all
those who have framed written constitutions
contemplate
them
as
forming
the
fundamental and paramount law of the
nation, and consequently the theory of every
- 26 such government must be, that an act of the
legislature, repugnant to the constitution, is
void.” (Emphasis added).
The founders of this republic understood
history—particularly the problems that arose
because of the amorphous nature of the national
governmental structure. Early on, this Court
concluded that the Supremacy Clause was adopted
in order to ensure that the central government did
not suffer from the weaknesses that undercut the
earlier attempt at union under the Articles of
Confederation, acknowledging that “the conflicting
powers of the General and State Governments must
be brought into view, and the supremacy of their
respective laws, when they are in opposition, must
be settled” (McCulloch, 17 U.S. at 405):
“The American States, as well as the
American people, have believed a close and
firm Union to be essential to their liberty and
to their happiness. They have been taught by
experience that this Union cannot exist
without a government for the whole, and they
have been taught by the same experience that
this government would be a mere shadow,
that must disappoint all their hopes, unless
invested with large portions of that
sovereignty which belongs to independent
States. Under the influence of this opinion,
and thus instructed by experience, the
American people, in the conventions of their
respective States, adopted the present
- 27 Constitution.” Cohens, 19 U.S. at 380-81.4
The Constitution—in this case, particularly the
Fifth and Fourteenth Amendments—is thus
supreme against legislative reduction or evasion.
The California courts permitted a statute to
eliminate the right to sue to vindicate the Fifth
Amendment right to compensation for property
taken. To the extent that any legislation can be read
as restricting or eliminating the rights under
constitutional guarantees, that legislation is
“repugnant to the constitution [and] void.”
The Constitution itself lays down this rule, in the
section commonly referred to as the “Supremacy
Clause”:
“This Constitution, and the Laws of the
United States which shall be made in
Pursuance thereof, … shall be the supreme
Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the
Contrary notwithstanding.” (U.S. Const.,
art. VI, cl. 2, emphasis added.)
McCulloch was both clear and forceful about
how the Supremacy Clause permeated all
provisions of the Constitution. It referred to that
provision as:
This Court was keenly aware of the deficiencies of the
Articles of Confederation, noting pointedly how national
directives “were habitually disregarded [as being] a fact of
universal notoriety. With the knowledge of this fact, and
under its full pressure, a convention was assembled to change
the system.” Id. at 388. A key part of that change was the
Supremacy Clause. Id. at 381.
4
- 28 “a principle which so entirely pervades the
Constitution, is so intermixed with the
materials which compose it, so interwoven
with its web, so blended with its texture, as to
be incapable of being separated from it
without rending it into shreds.” McCulloch,
17 U.S. at 426 (emphasis added).
The unifying principle is that “the Constitution
and the laws made in pursuance thereof are
supreme; that they control the Constitution and
laws of the respective States, and cannot be
controlled by them.” McCulloch, 17 U.S. at 426,
emphasis added.
Indeed, when individual rights are incorporated
into the Constitution (through the Bill of Rights),
they become part of the Constitution and thus are
“supreme” over any state provision. See Barnette,
319 U.S. at 638-39.
As Chief Justice Marshall put it, “If then the
courts are to regard the constitution; and the
constitution is superior to any ordinary act of the
legislature; the constitution, and not such ordinary
act, must govern the case to which they both apply.”
Marbury, 5 U.S. at 177-78; see also 1 Charles
Warren, The United States Supreme Court in
United States History 14-15 (rev. ed. 1932) (noting
that “a supremacy of the Constitution and laws of
the Union ‘without a supremacy in the exposition
and execution of them would be as much a mockery
as a scabbard put into the hands of a soldier without
a sword in it.’” (quoting James Madison)).
The Supremacy Clause stands as a barrier to all
state laws that trench on the rights of private
- 29 property owners, like the rigid state statute of
limitations applied here.
B.
The Just Compensation Clause is a
Constitutional Guarantee that This
Court has held to be both SelfExecuting and Irrevocable. It Does
Not Depend Upon Legislative
Grace.
Owners’ rights to be secure in their property is
one of the primary objects for which the national
government was formed. In United States v. Jones,
565 U.S. 400, 405 (2012), the Court recalled Lord
Camden's holding in Entick v. Carrington, 95 Eng.
Rep. 807 (C.P. 1765), “The great end for which men
entered into society was to secure their property.”
This Court explained, “In any society the fullness
and sufficiency of the securities which surround the
individual in use and enjoyment of his property
constitute one of the most certain tests of the
character and value of government.” Monongahela
Nav. Co. v. United States, 148 U.S. 312, 324 (1893)
(followed by Olson v. United States, 292 U.S. 246,
254 (1934)).
This Court held the Fifth Amendment
guarantee of compensation does not “depend on the
good graces of Congress,” explaining:
“[A] landowner is entitled to bring an action
in inverse condemnation as a result of the
‘self-executing
character
of
the
constitutional provision with respect to
compensation’…. As noted in Justice
Brennan’s dissent in San Diego Gas, it has
been established at least since Jacobs [v.
- 30 United States, 290 U.S. 13 (1933)] that
claims for just compensation are grounded
in the Constitution itself.” First English
Evangelical Lutheran Church v. Los
Angeles, 482 U.S. 304, 315-16 (1987).
The Court reiterated recently that the Just
Compensation Clause is “self-executing.” Knick v.
Township of Scott, 588 U.S. 180, 192 (2019).
In First English, the Solicitor General (as
amicus curiae) urged that the Fifth Amendment
was merely “a limitation on the power of the
Government to act, not a remedial provision.” See
482 U.S. at 316, n.9. The Court rejected that
argument, concluding that it was the Constitution
itself that both established the right and dictated
the remedy. Id.
Indeed, even before San Diego Gas and First
English, this Court found:
“whether the theory … be that there was a
taking under the Fifth Amendment, and that
therefore the Tucker Act may be invoked
because it is a claim founded upon the
Constitution, or that there was an implied
promise by the Government to pay for it, is
immaterial. In either event, the claim traces
back to the prohibition of the Fifth
Amendment ….” United States v. Dickinson,
331 U.S. 745, 748 (1947).
The Fifth Amendment “prevents the public from
loading upon one individual more than his just
share of the burdens of government, and says that
when he surrenders to the public something more
- 31 and different from that which is exacted from other
members of the public, a full and just equivalent
shall be returned to him.” Monongahela, 148 U.S.
at 325. In other words, cash may not heal all
wounds, but it is a constitutionally acceptable
remedy for unconstitutional government action.
When the government takes an owner's property
the government has a “categorical duty” to comply
with the Fifth Amendment. See Arkansas Game &
Fish Comm'n v. United States, 568 U.S. 23, 31
(2012); Horne v. Dept. of Agriculture, 576 U.S. 350,
362 (2015). The government may not escape this
“categorical duty” by creating a statutory scheme
that truncates the Constitutionally guaranteed
compensation when property is taken. Thus, in
First English, this Court held that California had
“truncated” the Fifth Amendment’s rule by refusing
compensation for any part of the time that the
regulation precluded use of the property. 482 U.S.
at 317. So, here, California is up to its old tricks.
The California Court of Appeal “truncated” the
compensation rule by a short, but ironclad, deadline
to file suit for this constitutional violation.
More than that, this Court recently held that the
duty to pay just compensation when government
takes private property is “irrevocable.” Knick, 588
U.S. at 192. A right that is both “self-executing” and
“irrevocable” cannot be eliminated by a state
statute purporting to place a time restriction on
claiming that remedy.
In a somewhat different context, the Court had
no trouble in explaining the priority of the
Constitution over lower forms of regulation, noting
- 32 that “[t]he protections afforded by the Commerce
Clause cannot be made to depend on the good grace
of a state agency.” Brown-Forman Distillers Corp.
v. New York State Liquor Auth., 476 U.S. 573, 583
(1986). Governmental “grace” cannot overcome the
Constitution.
To be sure, statutes of limitation are valid—
when confined to their proper spaces. However,
such statutory limitations would be, as Marbury
put it, “repugnant to the constitution [and] void” to
the extent that they purported to interdict
constitutionally protected rights. 5 U.S. at 176-77.
As this Court put it bluntly in a more recent
regulatory taking case, the law cannot “put an
expiration date on the Takings Clause.” Palazzolo
v. Rhode Island, 533 U.S. 606, 627 (2001). Palazzolo
dealt with the ability of a property owner to sue for
a regulatory taking when the challenged regulation
was enacted before the plaintiff acquired title to the
property. The Court held that it would violate the
Constitution to hold that such a happenstance of
timing could prevent an injured property owner
from filing suit. Hence, “no expiration date” on the
Takings Clause.
The same is true here, where Santa Monica’s
violation of settled requirements of notice—
including those required by the City’s own
ordinances (App. 72)—prevented the property
owner from timely asserting his rights under local
law. As in Palazzolo, he retained the right to sue.
See also United States v. Lee, 106 U.S. 196 (1882),
where property wrongfully taken in 1862 was
restored to its rightful owners by this Court in
- 33 1882—twenty years later.
VI
THE CALIFORNIA SYSTEM DENIES THE
SEVENTH AMENDMENT RIGHT TO JURY
TRIAL. THE SEVENTH AMENDMENT
SHOULD BIND THE STATES.
In its most recent Term, the Court emphasized
the importance of the Seventh Amendment right
to a jury trial in civil matters:
“In the Revolution’s aftermath, perhaps
the ‘most success[ful]’ critique leveled
against the proposed Constitution was its
‘want of a ... provision for the trial by jury in
civil cases.’ The Federalist No. 83. The
Framers promptly adopted the Seventh
Amendment to fix that flaw. In so doing, they
embedded the right in the Constitution,
securing it against the passing demands
of expediency or convenience. Since then,
every encroachment upon it has been
watched with great jealousy.” SEC v.
Jarkesy, 144 S.Ct. 2117, 2128 (2024)
(emphasis added; cleaned up).5
5 See also West Virginia State Bd. of Ed. v. Barnette, 319 U.S.
624, 636-37 (1943) (“Without promise of a limiting Bill of
Rights it is doubtful if our Constitution could have mustered
enough strength to enable its ratification.”); Charles W.
Wolfram, The Constitutional History of the Seventh
Amendment, 57 Minn. L. Rev. 639, 745 (1973). “No civil
provision was more highly cherished in the European and
American dominions of George III than jury trial.” 1 John P.
Reid, Constitutional History of the American Revolution: The
Authority of Rights 4 (1986).
- 34 So saying, the Court invalidated an SEC
practice that mirrors the administrative practice
used by Santa Monica here. In Jarkesy, the Court
held that an administrative agency cannot be both
prosecutor and judge in the same proceeding.
In the Court’s words, “to concentrate the roles of
prosecutor, judge, and jury in the hands of the
Executive Branch ... is the very opposite of the
separation of powers that the Constitution
demands.” (144 S.Ct. at 2139.)6 That is precisely
what Santa Monica did here, when its Landmarks
Commission “nominated” the home then owned by
Briles (now by Haselhoff) for a historic landmark
designation and then sat in judgment on that
“nomination” and approved its own request.
Santa Monica violated the Jarkesy precept that
a single administrative agency cannot both
prosecute and judge the same matter, a settled
precept that the Court recently summarized this
way:
“ordinarily ‘no man can be a judge in his own
case’ consistent with the Due Process
Clause.” Chrysafis v. Marks (2021) 141 S.Ct.
2482, 2482.7
6 “Or, as Alexander Hamilton wrote in The Federalist Papers,
‘there is no liberty if the power of judging be not separated
from the legislative and executive powers.’ The Federalist
No. 78, at 466 (quoting 1 Montesquieu, The Spirit of Laws 181
(10th ed. 1773)).” (144 S.Ct. at 2131-32.)
7 The concept was remarked upon before the founding of our
republic. See, e.g., Edward Coke, Institutes of the Laws of
England § 212 (1628). Lord Coke explained that this rule
declared “a natural right so inflexible that an act of
- 35 Contrary to the Court of Appeal’s belief, “bias”
is not necessarily evil (see App, 32); it simply
connotes a “natural inclination for or against an
idea, object, group, or individual.” (See, e.g.,
https://help.uchicago.edu/.) When the city’s
Landmarks Commission placed the question of
landmarking this home on its agenda, it did so out
of a natural inclination toward that belief. And
then it ruled on its own idea. That is bias. And it
shows the wisdom in this Court’s insistence on
separating the proponent from the decision maker.
Virtually all of the Bill of Rights protections
have been incorporated into the Fourteenth
Amendment, as the Court explained:
“With only a handful of exceptions, this
Court has held that the Fourteenth
Amendment’s
Due
Process
Clause
incorporates the protections contained in
the Bill of Rights, rendering them applicable
to the States. A Bill of Rights protection is
incorporated, we have explained, if it is
fundamental to our scheme of ordered
liberty, or deeply rooted in this Nation's
history and tradition.” Timbs v. Indiana,
586 U.S. 146, 150 (2019) (cleaned up;
emphasis added).
The Court has not yet incorporated the Seventh
Amendment jury trial right into the Fourteenth
parliament seeking to subvert it would be declared void.”
Meyer v. City of San Diego (1898) 121 Cal. 102, 104. The point
appears
in
the
most
simplistic
of
texts.
See
https://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua.
- 36 Amendment, although it has never given an
explanation for leaving this core principle of our
system dangling.8 As noted above, the lack of the
right to a civil jury was a key to adoption of the Bill
of Rights and specifically the Seventh Amendment.
In Malloy v. Hogan, 378 U.S. 1, 5 (1964) this
Court explained its process for incorporation,
noting the many provisions of the Bill of Rights
that have been incorporated into the due process
clause of the Fourteenth Amendment, and
explaining:
“The Court has not hesitated to reexamine past decisions according the
Fourteenth Amendment a less central role
in the preservation of basic liberties than
that which was contemplated by its Framers
when they added the Amendment to our
constitutional scheme.”
The Seventh Amendment right to a jury trial in
civil cases is clearly a core American value, deeply
embedded in our system since its inception. It is
time for states to be held to the same jury trial
requirements as the federal government.
8 See, e.g., Livingston v. Moore, 7 Pet. [32 U.S.] 469, 552 (1833);
Walker v. Sauvinet, 92 U.S. 90, 92 (1875); Missouri v. Lewis,
101 U. S. 22, 31 (1879); Twining v. New Jersey, 211 U.S. 78,
110, 111 (1908); Minneapolis & St. Louis R.R. Co. v. Bombolis,
241 U.S. 211, 217 (1916). See also Duncan v. Louisiana, 391
U.S. 145, 180-81 (1968) (dissenting opinion), explaining how
the right to a civil jury trial is not incorporated but the Court
has not explained why.
- 37 VII.
CALIFORNIA LAW CONFLICTS WITH THIS
COURT’S DECISIONS REGARDING THE
ACCRUAL OF STATUTES OF LIMITATION.
The law regarding statutes of limitation is in
disarray. This is due in large part to a series of old
opinions routinely treating such statutes as
“jurisdictional.” That was taken to mean that
failure to file suit within the stated period would
deprive the courts of jurisdiction to consider the
suit. Many of those older decisions were made with
little thought or consideration. Indeed, this Court
has referred to them as “drive-by jurisdictional
rulings that should be accorded no precedential
effect on the question whether the federal court had
authority to adjudicate the claim in suit.” Wilkins v.
United States, 598 U.S. 152, 160-61 (2023) (quoting
Arbaugh v. Y&H Corp., 546 U.S. 500, 511 (2006)
(emphasis added)).
The Court probably thought it had settled the
issue when it concluded “that most time bars are
not jurisdictional.” United States v. Wong, 575 U.S.
402, 410 (2015) (emphasis added).
But lower courts like those in California
apparently refuse to accept that. In this case, for
example, the California Court of Appeal applied a
“strict” construction to the statute of limitations
that, in effect, applied it as a jurisdictional statute
through the back door.
Worse than that, the California courts used a
strictly applied state statute of limitations to
eviscerate a federal constitutional cause of action.
- 38 In its most recent Term, this Court again dealt
with statutes of limitations in Corner Post, Inc. v.
Board of Governors, 144 S.Ct. 2440 (2024). There,
the lower courts had applied an unduly crabbed
limitation on the right to sue. This Court corrected
that error. As needs to be done here.
Certiorari is needed to clarify the proper
application of statutes of limitation and their
impact on federal constitutional claims.
CONCLUSION
The California courts once again ignored
Constitutional dictates designed to protect private
property owners. The brief opinion below found
multiple ways to violate the Fifth Amendment. This
must stop. The petition for certiorari should be
granted.
MICHAEL M. BERGER*
*Counsel of Record
MANATT, PHELPS & PHILLIPS
2049 Century Park East, Suite 1700
Los Angeles, CA 90067
(310) 312-4000
mmberger@manatt.com
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA,
SECOND APPELLATE DISTRICT, DIVISION
TWO, FILED MAY 7, 2024 . . . . . . . . . . . . . . . . . . . . 1a
A PPENDI X B — JOIN T STI PU L AT ED
JUDGMENT IN THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA FOR
THE COUNTY OF LOS ANGELES, FILED
MAY 27, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35a
APPENDIX C — ORDER OF THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA,
S E C O N D A P P E L L A T E DI S T R IC T,
DIVISION TWO, FILED MAY 28, 2024 . . . . . . . . 69a
APPENDIX D — ORDER OF THE SUPREME
COURT OF CALIFORNIA, FILED JULY
24, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70a
APPENDIX E — RELEVANT STATUTORY
PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72a
1a
AppendixOF
A THE COURT OF
APPENDIX A — OPINION
APPEAL OF THE STATE OF CALIFORNIA,
SECOND APPELLATE DISTRICT, DIVISION TWO,
FILED MAY 7, 2024
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
B322168
(Los Angeles County Super. Ct. No. 19SMCV00850)
OTTO L. HASELHOFF, INDIVIDUALLY
AND AS TRUSTEE, ETC.,
Plaintiff and Appellant,
v.
CITY OF SANTA MONICA,
Defendant and Respondent.
May 7, 2024, Opinion Filed
APPEAL from a judgment of the Superior Court of
Los Angeles County, No. 19SMCV00850, H. Jay Ford III,
Judge. Affirmed.
In 2010, defendant and respondent City of Santa
Monica (the City) designated a historic estate as a
City landmark. In 2019, plaintiff and appellant Otto L.
2a
Appendix A
Haselhoff (Haselhoff), individually and as trustee of the
Otto and Lara Haselhoff Family Trust dated July 27,
2006, and as assignee of Greg W. Briles (Briles), brought
this action to invalidate the landmarking of the property.
The City demurred on the grounds that Haselhoff’s action
was time-barred by Government Code section 65009.1 The
trial court sustained the demurrer without leave to amend
and entered a judgment of dismissal in favor of the City.
Haselhoff appeals.
We affirm.
1. All further statutory references are to the Government
Code unless otherwise indicated.
3a
Appendix A
FACTUAL 2 AND PROCEDURAL BACKGROUND
The City’s general plan and landmarking ordinance
The City’s general plan includes a historic preservation
element, which provides that the City “is strongly
committed to historic preservation” as “reflected in the
programs and policies of the City including a Landmarks
and Historic Districts Ordinance.” The City’s landmark
designation procedure is outlined in Santa Monica
Municipal Code section 9.56.120. It provides that a
property may be nominated for designation by “any
person” that files an application, or “the [Landmarks]
Commission may file an application for the designation
of a Landmark on its own motion.” (Santa Monica Mun.
Code, § 9.56.120(A).)
2. “Because this matter comes to us on demurrer, we take
the facts from [Haselhoff’s operative pleading], the allegations
of which are deemed true for the limited purpose of determining
whether [he] has stated a viable cause of action. [Citation.]”
(Stevenson v. Superior Court (1997) 16 Cal.4th 880, 885, 66 Cal.
Rptr. 2d 888, 941 P.2d 1157.) We also take “judicial notice of . . .
each matter properly noticed by the trial court.” (Evid. Code,
§ 459.) We disregard allegations of fact contrary to facts that are
judicially noticed. (Del E. Webb Corp. v. Structural Materials Co.
(1981) 123 Cal.App.3d 593, 604, 176 Cal. Rptr. 824.) In his reply
brief, Haselhoff argues that the trial court erred in granting the
City’s request for judicial notice. And, at oral argument, appellate
counsel repeatedly asserted that this matter should not have been
resolved on demurrer; rather, any and all factual matters should
have been resolved at trial. We reject his belated argument.
(Rubinstein v. Fakheri (2020) 49 Cal.App.5th 797, 809, 263 Cal.
Rptr. 3d 344.)
4a
Appendix A
Following nomination, a public hearing is scheduled
“within 100 days of the determination that the application
is complete” to evaluate the proposed designation. (Santa
Monica Mun. Code, § 9.56.120(C).) “Not more than 20
days and not less than 10 days prior to the date scheduled
for a public hearing, notice of the date, time, place and
purpose thereof shall be given by at least one publication
in a daily newspaper of general circulation, and shall be
mailed to the applicant, the owner of the improvement,
all owners and residential and commercial tenants of all
real property within 300 feet of the exterior boundaries of
the lot or lots on which a proposed Landmark is situated,
and to residential and commercial tenants of the subject
property, using for this purpose the names and addresses
of such owners as are shown on the records of the Los
Angeles County Assessor.” 3 (Santa Monica Mun. Code,
§ 9.56.120(D).) “The failure to send notice by mail to any
such real property owner where the address of such owner
is not a matter of public record shall not invalidate any
proceedings in connection with the proposed designation.
The [Landmarks] Commission may also give such other
notice as it may deem desirable and practicable.” (Ibid.)
3. See also section 65091, subdivision (a)(1), which provides,
in relevant part, that when notice of a public hearing is required,
“[n]otice of the hearing shall be mailed or delivered at least 10 days
prior to the hearing to the owner of the subject real property as
shown on the latest equalized assessment roll. Instead of using the
assessment roll, the local agency may use records of the county
assessor or tax collector if those records contain more recent
information than the information contained on the assessment
roll.”
5a
Appendix A
At the designated public hearing, the Landmarks
Commission receives and evaluates the evidence
submitted, including public comment, and then issues a
final decision on the application at the conclusion of the
public hearing. (Santa Monica Mun. Code, § 9.56.120(E).)
The decision is final and in “full force and effect from and
after the date of the rendering of such decision by the
[Landmarks] Commission.” (Santa Monica Mun. Code,
§ 9.56.120(G).)
The subject property
Actress and singer Kathryn Grayson (Grayson) lived
at 2009 La Mesa Drive (the property) from 1945 until her
death on February 17, 2010. City records reflect that the
property was owned by the Kathryn Z. Grayson Trust
(the Grayson Trust).
First transfer of title/grant deed
On July 9, 2010, title of the property was transferred
from the Grayson Trust to Briles.4
Landmarks Commission meeting (Aug. 9, 2010)
During an open session of its regularly scheduled
August 9, 2010, meeting, the Landmarks Commission
adjourned an item to discuss whether to file an application
to designate the property as a landmark based on “a letter
[received] from the owner of 2009 La Mesa Drive.” The
property owner was not identified by name.
4. The grant deed was not recorded until October 22, 2010.
6a
Appendix A
Landmarks Commission meeting (Sept. 13, 2010)
At its September 13, 2010, meeting, the Landmarks
Commission considered whether it should file an
application to designate the property as a City landmark.
The Grayson Trust, the property owner of record at
this time, hired Kate Bartolo (Bartolo), a consultant with
historical preservation experience, to be its representative
at the September 13, 2010, meeting. She stated that
the Grayson Trust did not have a position regarding a
landmark designation of the property. She noted that
there was a “potential buyer who does not have plans to
demolish or alter the facade of the building.” When asked
“if the potential buyer/representative had knowledge
that the property was listed on the Historic Resource
Inventory5 and was aware of possible designation, . . .
Bartolo responded in the positive.” Likewise, when asked
“if she was stating the position of the potential owner
during [that] meeting,. . . . Bartolo responded in the
positive.”
A motion was made to file a landmark designation for
the property, and the motion was approved.6 At some point
5. An “inventory list” refers to the City’s historic resources
inventory, which is “a database containing building descriptions
and evaluations of potential historic resources in Santa Monica.”
(https://www.smgov.net/departments/pcd/historic-resourcesinventory.)
6. At least one commissioner stated that the Landmarks
Commission was “pleased that the property owner [was]
supportive of the application.”
7a
Appendix A
thereafter, Scott Albright (Albright), the “Landmarks
[liaison],” submitted the landmark designation application
for the property. The property owner is identified as
“Kathryn Grayson TR.”
Briles-Culotti partnership to purchase and sell the
property
After a decade of successful real estate partnerships,
Briles and Elaine F. Culotti7 (Culotti) entered into a
written partnership agreement, effective October 21,
2010, to purchase and sell the property. As is relevant to
the issues in this appeal, section 4.1 of the partnership
agreement provides: “At the time of entering into this
Agreement, the Partners are uncertain as to how title
will be [held]. Regardless, if it is in the name of the
Partnership, business entity, Gary Culotti, or another
individual, it shall be an asset of the Partnership for all
purposes.”
Notice of Landmarks Commission hearing
On October 29, 2010, notice of the Landmarks
Commission public hearing regarding the property was
published in the Santa Monica Daily Press.
7. Curiously, Haselhoff’s opening brief contains no mention
of Culotti or the Briles-Culotti partnership. (Cal. Rules of Court,
rule 8.204(a)(2)(A).) In his reply brief, Haselhoff contends that
any mention of Culotti is a red herring. As discussed throughout
this opinion, we disagree.
8a
Appendix A
On that same date, a notice of public hearing was
served. The applicant is identified as the Landmarks
Commission, and the property owner is identified as
“Kathryn Z. Grayson TR,” which was served at the
property address.
Landmarks Commission meeting (Nov. 8, 2010)
The staff report for the November 8, 2010, meeting
provides: “Notice of the public hearing was provided as
follows: Pursuant to SMMC Section 9.36.120, notice of the
public hearing was mailed to all owners and residential
and commercial tenants of property within a 300-foot
radius of the project and was published in the Santa
Monica Daily Press at least ten consecutive calendar days
prior to the hearing.” The notice referenced section 65009,
subdivision (b), and warned that the failure to present
evidence at or before the hearing could bar it from being
considered later.
At the meeting, the Landma rks Commission
considered the application to designate the property
as a City landmark. Based upon a detailed review of
the property and its historical significance, “it [was]
recommended that the Landmarks Commission designate
the [property] as a Landmark and Landmark Parcel.”
Briles-Culotti partnership receives four certificates
of appropriateness to renovate the property as a City
landmark
Over several years, the Briles-Culotti partnership
completed an expansive multi-million dollar renovation
9a
Appendix A
of the property. Significant alterations to a landmarked
property require a certificate of appropriateness from
the Landmarks Commission or City staff before building
permits are issued. (Santa Monica Mun. Code, §§ 9.56.070,
9.56.140.)
From 2 011 th rough 2 012 , the Br i les- Culotti
partnership applied for and received several certificates
of appropriateness. Also during this time, Culotti attended
multiple public certificate of appropriateness hearings
before the Landmarks Commission.
Briles-Culotti partnership applies for a Mills Act 8
contract
On July 17, 2012, the Briles-Culotti partnership
applied for a Mills Act contract with the City. City staff
supported the proposed Mills Act contract, estimating a
large tax reduction that would constitute a “significant
marketing feature for the property in terms of future
sales.”
On November 27, 2012, the City Council held a public
hearing on the Briles-Culotti partnership’s request for a
Mills Act contract.
8. The Mills Act (§ 50280 et seq.) authorizes contracts
between a historic property owner and local governments. These
contracts may provide property tax reductions in exchange
for maintaining a historic property. (Prentiss v. City of South
Pasadena (1993) 15 Cal.App.4th 85, 93, 18 Cal. Rptr. 2d 641; Rev.
& Tax. Code, §§ 439-439.4.)
10a
Appendix A
Briles transfers title to the Briles-Culotti partnership
Meanwhile, a grant deed dated October 4, 2012,
transferring title of the property from Briles to the BrilesCulotti partnership was recorded on October 10, 2012.
Relationship between Briles and Culotti breaks down
and prompts litigation
In or around 2014, the relationship between Briles
and Culotti began to break down. On June 26, 2014, Briles
transferred title to the property from the Briles-Culotti
partnership to a family trust he controlled.
On August 24, 2014, Culotti filed a notice of lis pendens
against the property. Shortly thereafter, on October 15,
2014, Culotti filed a demand for arbitration. She alleged
that Briles committed fraud and fraudulent conveyance.
Briles did not defend her claim by asserting that he alone
owned the property. Rather, he argued that the change
in title did not affect the partnership’s ownership of the
property at all times.
For example, in a joint stipulation as to undisputed
facts dated August 23, 2015, Briles stipulated that he
loaned the partnership money so that it could purchase
the property. He also testified at the proceeding that the
property was “owned by the partnership.”
Furthermore, at multiple times during the arbitration
proceeding, the parties acknowledged the property’s
landmarked status. For example, during Culotti’s
11a
Appendix A
opening statement, counsel indicated that the property
is a designated City landmark. In his opening, Briles’s
attorney blamed Culotti for the partnership’s inability to
get a valuable Mills Act property tax reduction.
During her testimony at the arbitration proceeding,
Culotti stated multiple times that she knew the property
was going to be landmarked.
The arbitration concluded with a $1.1 million damage
award in favor of Culotti. 9 Title to the property was
ordered to remain in Briles’s family trust.
Meanwhile, on November 4, 2014, Briles filed a motion
to expunge the lis pendens. In his supporting declaration,
he confirmed that the property was “owned exclusively
by the Partnership regardless of whose name is on the
title[,] [a]ccording to paragraph 4.1 of the Agreement.”
On October 7, 2015, the trial court granted Briles’s
motion and expunged the lis pendens.
Transfer of property to Haselhoff
A grant deed dated June 25, 2018, and recorded
October 29, 2018, indicates that Briles transferred title
to the property to Haselhoff.
9. That arbitration award was confirmed, and a judgment was
issued on July 15, 2016. Briles appealed, and the Court of Appeal
affirmed the judgment. (Culotti v. Briles (June 6, 2018), B279508
[nonpub. opn.].) That judgment is final.
12a
Appendix A
First amended complaint (FAC)
Haselhoff initiated this litigation on May 7, 2019.10
The FAC11 sets forth five causes of action: (1) petition
for writ of administrative mandamus, (2) constitutional
damages claims, (3) slander of title damages claims, (4)
claims under the Ralph M. Brown Act (§ 54950 et seq.),
and (5) declaratory relief. According to the FAC, various
irregularities in the landmark designation process
rendered the application invalid. Furthermore, the City
failed to give proper notice of the “‘landmarking hearing’”
to Briles, the owner of the property at the relevant time.
The City’s demurrer and motion to strike
On February 20, 2020, the City filed a demurrer and
motion to strike portions of the FAC. In the demurrer,
the City argued, inter alia, that the first two causes of
action were untimely under either section 6500912 or
10. The trial court expressly addressed with Haselhoff “the
defects and verbosity of the original complaint (41 pages). In
response, [Haselhoff] agreed to amend the complaint to avoid a
demurrer.”
11. Like the original pleading, the FAC is lengthy (57
pages) and filled with numerous statutory and case citations
and quotations, inappropriate legal argument, and unnecessary
flippant remarks, such as accusing Albright as being the “rogue
planner that inspired, in part, ‘Parks & Recreation’ a television
comedy that highlights the abuses of local government officials”.
Such allegations are not in line with the mandates of Code of Civil
Procedure section 425.10, subdivision (a)(1).
12 . Section 650 09 governs actions challeng ing local
government decisions. Subdivision (c)(1) provides that “no action
13a
Appendix A
Code of Civil Procedure section 338, subdivision (a).13
The City also argued that Briles’s failure to challenge the
2010 landmarking decision was binding on Haselhoff as a
subsequent purchaser.
In its motion to strike, the City argued that the trial
court should disregard allegations that Briles purchased
the property because: (1) the doctrine of truthful pleading
allows the trial court to disregard allegations inconsistent
with prior pleadings and other judicially noticeable facts,
and (2) these allegations were precluded by the doctrine
of judicial estoppel.
In support, the City requested judicial notice of a host
of documents pertaining to the Landmarks Commission
hearings, the arbitration between Briles and Culotti, and
Culotti’s lis pendens.
Haselhoff’s opposition
Haselhoff opposed both the demurrer and motion to
strike. As is relevant to the issues raised in this appeal,
Haselhoff argued that because the “City failed to give
notice under its own [statutes] of the hearing, the intent
or proceeding shall be maintained [in specified cases] unless
the action or proceeding is commenced and service is made on
the legislative body within 90 days after the legislative body’s
decision.”
13. Code of Civil Procedure section 338, subdivision (a),
provides that “[an] action upon a liability created by statute” must
be filed within three years.
14a
Appendix A
to landmark the parcel and ultimately the determination
to adjudicate the structure and parcel at 2009 La Mesa as
a landmark[, it could not] invoke any statutory timing as
a defense to its unconstitutional and otherwise improper
actions without offending well established principles of
due process.”
Regarding section 65009, Haselhoff argued that it
“does not relate to landmarking. Its concern is actually
the opposite: A housing crisis means that development
projects must not be delayed.” In fact, section 65009
does not mention landmarks; the statute only pertains to
a city’s general or specific plan, zoning ordinances, and
development agreements.
Furthermore, because the City did not direct any
notice to Briles, it did not provide proper notice of the
Landmarks Commission hearing concerning the property.
Haselhoff objected to the City’s request for judicial
notice and, in support of his opposition, requested judicial
notice of various documents pertaining to the Landmarks
Commission.
Reply papers
The City submitted a reply brief. In response,
Haselhoff submitted an objection to the City’s reply, along
with supporting declarations. Haselhoff declared: “I feel
that the Opposition was more than sufficient. I hope the
Court agrees. But of course, I could state more if the
Court wanted more, and I was given the opportunity.”
15a
Appendix A
He then set forth 10 additional facts he would include in
an amended pleading.
The City responded with a reply to Haselhoff’s
surreply and accompanying objections.
Initial hearing on the City’s demurrer and motion to
strike (Aug. 11, 2020)
The trial court’s tentative was to sustain the demurrer
to the FAC without leave to amend as to the first cause
of action (petition for writ of mandate) and overrule it as
to all remaining causes of action. The trial court initially
determined that the claim was time-barred by section
65009. The trial court also indicated its intent to grant
portions of the City’s motion to strike.
Following oral argument, Haselhoff was directed to
submit a “supplemental opposition . . . to the Demurrer
and a proposed Amended Complaint with paragraphs
stricken pursuant to the granting of the Motion to
Strike.” The supplemental opposition was “to focus on
the additional unalleged facts that [Haselhoff] claims
support [his] position that: . . . [his] 2019 challenge to the
2010 Landmarking Decision is not time barred by [section]
65009’s 90-day limitations period.”
In so ruling, the trial court granted the City’s request
for judicial notice as to all exhibits except the transcripts
of the Landmarks Commission hearings and certain
newspaper articles. “The Court’s decision to judicially
notice the existence and filing of these documents is
16a
Appendix A
not judicial notice of the truth of the documents, the
interpretation of any of these documents or any findings
of facts contained therein.”
Supplemental briefs
Haselhoff’s supplemental opposition
On November 10, 2020, Haselhoff submitted his
supplemental opposition to the City’s demurrer and
a proposed second amended complaint (SAC). In the
supplemental opposition, he argued that the City’s failure
to provide notice of the Landmarks Commission hearing
tolled all statutory timing as a defense to this action.
In support, Haselhoff submitted another request for
judicial notice.
The proposed SAC is 73 pages long and riddled with
improper legal citations, argument, and conclusions.
The City’s supplemental reply
The City filed a reply to Haselhoff’s supplemental
opposition, arguing that (1) section 65009’s 90-day
limitations period cannot be tolled, and (2) the proposed
SAC failed to allege any facts that warranted modifying
the original tentative ruling to sustain the demurrer
without leave to amend.
17a
Appendix A
The City objected to Haselhoff’s request for judicial
notice. In support of its objection, the City submitted a
declaration from its counsel, which included a declaration
from Robert Isozaki (Isozaki), the custodian of records
for the Los Angeles County Office of the Assessor.
Haselhoff’s purported objection to the reply
Haselhoff submitted a “response” to the City’s “new
evidence,” “styled” as an objection to Haselhoff’s most
recent request for judicial notice. Specifically, Haselhoff
objected to the Isozaki declaration. Within that objection,
Haselhoff offered further argument on the applicability of
section 65009 and the City’s failure to give proper notice
of the Landmarks Commission hearing. And, Haselhoff
submitted four additional exhibits.
The City’s response
In response to Haselhoff’s self-styled objection
to evidence, the City submitted a reply to Haselhoff’s
“sur-reply . . . in response to purported ‘new evidence’
submitted” by the City.
Trial court order (Dec. 15, 2020)
The trial court sustained the City’s demurrer to the
petition for a writ of mandate (first cause of action), finding
that Haselhoff could not show that equitable tolling would
overcome the time limitation set forth in section 65009.
Furthermore, the FAC admits that Briles and Haselhoff
18a
Appendix A
knew that the property was landmarked more than 90
days before their lawsuit was filed.
The trial court denied Haselhoff leave to file his
proposed SAC, reasoning: “Plaintiff was given an
extraordinary amount of time to identify and allege all the
possible facts to overcome the defects of the first amended
complaint. Despite that time, Plaintiff’s proposed Second
Amended Complaint fails to state any claim, other than
slander of title. Similarly, the Court finds the additional
proposed amendments orally raised at the hearing do not
overcome the defects of the first amended complaint. The
Court finds Plaintiff cannot allege any further facts that
would change the legal effect of Plaintiff’s claims.”
Only the slander of title claim (third cause of action)
survived.
Settlement and joint stipulated judgment
The parties engaged in mediation and entered into
a 2022 settlement agreement to resolve the slander of
title claim. The parties then prepared a joint stipulated
judgment, which the trial court executed on May 27, 2022.
Appeal
This timely appeal ensued.
19a
Appendix A
DISCUSSION
I.
Standard of review
“Our Supreme Court has set forth the standard of
review for ruling on a demurrer dismissal as follows:
‘On appeal from a judgment dismissing an action after
sustaining a demurrer without leave to amend, the
standard of review is well settled. The reviewing court
gives the complaint a reasonable interpretation, and treats
the demurrer as admitting all material facts properly
pleaded. [Citations.] The court does not, however, assume
the truth of contentions, deductions or conclusions of law.
[Citation.] The judgment must be affirmed “if any one of
the several grounds of demurrer is well taken. [Citations.]”
[Citation.] However, it is error for a trial court to sustain
a demurrer when the plaintiff has stated a cause of action
under any possible legal theory. [Citation.] And it is an
abuse of discretion to sustain a demurrer without leave
to amend if the plaintiff shows there is a reasonable
possibility any defect identified by the defendant can be
cured by amendment. [Citation.]’ [Citations.]” (Payne v.
National Collection Systems, Inc. (2001) 91 Cal.App.4th
1037, 1043-1044, 111 Cal. Rptr. 2d 260.)
A demurrer may be supported by matters that are
subject to judicial notice. (Code Civ. Proc., § 430.30, subd.
(a); Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6, 40
Cal. Rptr. 3d 205, 129 P.3d 394.) Appellate courts should
judicially notice any fact of which the trial court took
proper judicial notice. (Evid. Code, § 459, subd. (a).)
20a
Appendix A
II. Relevant law
At issue in this appeal is whether Haselhoff’s action
is time-barred by section 65009, subdivision (c).14 “A
demurrer based on a statute of limitations is appropriate
if the ground appears on the face of the complaint or from
matters of which the court may or must take judicial
notice.” (Aaronoff v. Martinez-Senftner (2006) 136 Cal.
App.4th 910, 918, 39 Cal. Rptr. 3d 137.)
Section 65009, subdivision (c)(1), provides, in relevant
part, that “no action or proceeding shall be maintained
in any of the following cases by any person unless the
action or proceeding is commenced and service is made
on the legislative body within 90 days after the legislative
body’s decision: [¶] . . . [¶] (B) To attack, review, set aside,
void, or annul the decision of a legislative body to adopt
or amend a zoning ordinance. [¶] . . . [¶] (E) To attack
review, set aside, void, or annul any decision on the matters
listed in Sections 65901 and 65903, or to determine the
reasonableness, legality, or validity of any condition
attached to a variance, conditional use permit, or any other
permit.” (§ 65009, subds. (c)(1)(B) & (E).) Subdivision (e)
adds: “Upon the expiration of the time limits provided for
in this section, all persons are barred from any further
action or proceeding.”
14. The parties also raise the question of whether Haselhoff’s
action is time-barred by Code of Civil Procedure section 338,
subdivision (a). For the same reasons Haselhoff’s action is barred
by section 65009, subdivision (c), his claims are barred by this
three-year statute of limitations.
21a
Appendix A
Section 65009 falls within Title 7 (Planning and
Land Use), Division 1 (Planning and Zoning), of the
Government Code. Division 1 is the Planning and Zoning
Law. (§ 65000.) “The planning and zoning law establishes
the authority of most local government entities to regulate
the use of land. [Citation.] Under the planning and zoning
law, each county and city must ‘adopt a comprehensive,
long-term general plan for the physical development of the
county or city. . . . ’ [Citation.] The general plan consists
of a ‘statement of development policies . . . setting forth
objectives, principles, standards, and plan proposals.’
[Citation.] ‘Subordinate to a general plan are zoning laws,
which regulate the geographic allocation and allowed uses
of land. [Citation.] . . . ’ [Citation.] To provide certainty
for property owners and local governments regarding
decisions by local agencies made pursuant to the planning
and zoning law, the Legislature enacted ‘a short, 90-day
statute of limitations, applicable to both the filing and
service of challenges to a broad range of local zoning and
planning decisions.’” [Citation.] (Save Lafayette Trees v.
City of Lafayette (2019) 32 Cal.App.5th 148, 155, 243 Cal.
Rptr. 3d 636 (Lafayette); see § 65009, subds. (a)(3), (c); see
also Travis v. County of Santa Cruz (2004) 33 Cal.4th 757,
774, 775, 16 Cal. Rptr. 3d 404, 94 P.3d 538 (Travis) [“[t]
he legislative policy of requiring a prompt challenge . . .
remains clear in section 65009”].)
“[C]ourts have interpreted [section 65009] as applying
to challenges to a broad range of local zoning and planning
decisions.” (Lafayette, supra, 32 Cal.App.5th at pp.
156-157; see § 65850, subd. (a) [“The legislative body of
any county or city may, pursuant to this chapter, adopt
22a
Appendix A
ordinances that do any of the following: [¶] (a) Regulate the
use of buildings, structures, and land as between industry,
business, residences, open space, including agriculture,
recreation, enjoyment of scenic beauty, use of natural
resources, and other purposes”].)
III. Analysis
Applying these legal principles, we conclude that the
trial court did not err in sustaining the City’s demurrer
to Haselhoff’s FAC on the grounds that his action is timebarred pursuant to section 65009, subdivisions (c)(1)(B)
and (e).
In accordance with section 65300, the City enacted
a general plan and, in accordance with section 65302,
subdivisions (a) and (b), that general plan includes a
“‘land use and circulation element,’” which contains a
chapter on “historic preservation.” The City’s general
plan also includes a historic preservation element,
which provides that the City “is strongly committed to
historic preservation” as “reflected in the programs and
policies of the City including a Landmarks and Historic
Districts Ordinance.” It follows that the City’s landmark
ordinance (Santa Monica Mun. Code, § 9.56.020), which is
located within Division 6 (Land Use and Zoning Related
Regulations) of Article 9 (Planning and Zoning) of the
Santa Monica Municipal Code, constitutes a zoning-related
land use regulation that advances the City’s general plan.
(See Lafayette, supra, 32 Cal.App.5th at p. 157; see also
Weiss v. City of Del Mar (2019) 39 Cal.App.5th 609, 621622, 252 Cal. Rptr. 3d 424 [a public entity decision involving
23a
Appendix A
the regulation and management of property is a land use
and zoning determination].) Thus, the time limitations set
forth in section 65009, subdivision (c)(1), apply.
The challenged Landmarks Commission decision
was made on November 8, 2010, and officially approved
on February 14, 2011. Because Haselhoff did not file this
action within 90 days of either of those dates, all of his
claims are untimely. (§ 65009, subd. (c)(1) [“no action or
proceeding shall be maintained” after the 90-day period
has expired]; Freeman v. City of Beverly Hills (1994)
27 Cal.App.4th 892, 897, 32 Cal. Rptr. 2d 731 [§ 65009
applies to claims for monetary damages as well as those
for declaratory and injunctive relief]; Travis, supra, 33
Cal.4th at p. 767.) Accordingly, the FAC was properly
dismissed.15
A.
Section 65009, subdivision (a)(1)
Urging us to conclude otherwise, Haselhoff argues
that section 65009 is inapplicable because this dispute
concerns a landmark designation, not a decision related
to housing. Admittedly, section 65009, subdivision (a)(1),
provides: “The Legislature finds and declares that there
15. Code of Civil Procedure section 1094.6 does not compel a
different result. Haselhoff does not fall within the scope of persons
covered by that statute. (See Code Civ. Proc., § 1094.6, subd. (f )
[defining a party as a person who has been impacted by (1) an
employment suspension, demotion, or dismissal, (2) a revoked,
suspended, or denied permit, license, or other entitlement, or
applications relating thereto, and (3) a denial of retirement
benefits].)
24a
Appendix A
currently is a housing crisis in California and it is essential
to reduce delays and restraints upon expeditiously
completing housing projects.” But courts have rejected
the notion that section 65009, subdivision (c)(1), “restricts
its application to decisions involving housing.” (Lafayette,
supra, 32 Cal.App.5th at p. 156.) Rather, as set forth
above, “courts have interpreted the statute as applying to
challenges to a broad range of local zoning and planning
decisions.” (Id. at pp. 156-157.) We adopt the same analysis.
B.
Section 65009, subdivision (b)
Haselhoff further arg ues that section 650 09,
subdivision (c), requires a properly noticed hearing
as mandated by section 65009, subdivision (b). But
subdivision (c) does not refer to subdivision (b) or contain
any language regarding a “properly noticed” hearing. If
the Legislature had intended to add these conditions to
subdivision (c), it could have done so. (Artus v. Gramercy
Towers Condominium Assn. (2018) 19 Cal.App.5th 923,
945, 228 Cal. Rptr. 3d 496 [“It is not the role of the courts
to add statutory provisions the Legislature could have
included, but did not”].)
Regardless, as the trial court aptly found, section
65009, subdivision (b)(1), is simply a procedural rule
that limits a party’s ability to introduce evidence beyond
what was raised at the hearing. The statute provides,
in relevant part: “In an action or proceeding to attack,
review, set aside, void, or annul a finding, determination, or
decision of a public agency made pursuant to this title at a
25a
Appendix A
properly noticed public hearing, the issues raised shall be
limited to those raised in the public hearing or in written
correspondence delivered to the public agency prior to,
or at, the public hearing, except where the court finds
either of the following: [¶] (A) The issue could not have
been raised at the public hearing by persons exercising
reasonable diligence. [¶] (B) The body conducting the
public hearing prevented the issue from being raised at
the public hearing.” (§ 65009, subd. (b)(1).) Subdivision (b)
(2) continues: “If a public agency desires the provisions
of this subdivision to apply to a matter, it shall include in
any public notice” certain language. (§ 65009, subd. (b)(2).)
Nothing in this language supports Haselhoff’s argument.
C.
No notice
Haselhoff further contends that Briles had no notice of
the landmarking application, hearing, or decision. In other
words, because the City never specifically gave Briles
notice of the potential landmark decision, Haselhoff could
not have known about the landmarking. Thus, Haselhoff
claims that his lawsuit cannot be time-barred.
The problem with Haselhoff’s contention is that there
is no requirement that Briles should have been given
notice.16 He was not the property owner. Rather, pursuant
to exhibits of which the trial court properly took judicial
16. For this reason, Haselhoff’s argument that Briles did
not know that the Landmarks Commission was considering the
entire parcel and not just the house on the property is irrelevant.
26a
Appendix A
notice, at all relevant times, either the Grayson Trust17 or
the Briles-Culotti partnership owned the property. And
there is no contention that either of those two entities did
not have notice.
Culotti cer tainly knew about the Landmarks
Commission hearing and decision. Her knowledge is
binding on the Briles-Culotti partnership, which owned
the property. (Corp. Code, § 16301, subd. (1) [“Each
partner is an agent of the partnership” and “[a]n act of
a partner . . . for apparently carrying on in the ordinary
course the partnership business or business of the kind
carried on by the partnership binds the partnership”];
J&A Mash & Barrel, LLC v. Superior Court (2022)
74 Cal.App.5th 1, 28, 289 Cal. Rptr. 3d 110 [notice to a
partner is notice to the partnership]; GHK Associates v.
Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 881, 274
Cal. Rptr. 168 [knowledge of general partner imputed
to partnership].) That knowledge ran to Briles, as the
successor holder of title. And his knowledge is binding on
17. Nowhere does any of the City’s paperwork related to the
landmarking decision indicate that Grayson was the property
owner. Rather, the paperwork refers to “TR,” which either means
“trustee” or the Grayson Trust. Thus, we have disregarded
all ridiculous comments that the City erroneously sent notice
to a deceased person. In any event, at the risk of sounding
redundant, while technically the owner no longer was the Grayson
Trust, Haselhoff has not explained how the alleged error in the
documentation (identifying either the Grayson Trust or the trustee
as the property owner) renders the landmark designation void
given that the actual property owner had notice.
27a
Appendix A
Haselhoff as a subsequent purchaser.18 (Serra Canyon Co.
v. California Coastal Com. (2004) 120 Cal.App.4th 663,
668, 16 Cal. Rptr. 3d 110 [successor owner of property is
bound by prior owner’s waiver of right to seek review].)
We recognize that Haselhoff alleges in the FAC that he
was entitled to notice because he was the property owner.
(See, e.g., 1AA 96; see also AOB 46) But that allegation is
belied by Briles’s own admissions in the joint stipulation
as to undisputed facts in the Briles-Culotti arbitration, in
his testimony during the arbitration proceeding, and in
his declaration filed in support of the motion to expunge
the lis pendens filed by Culotti, all of which the trial court
took judicial notice.
“As a general rule in testing a pleading against a
demurrer the facts alleged in the pleading are deemed
to be true, however improbable they may be. [Citation.]
The courts, however, will not close their eyes to situations
where a complaint contains allegations of fact inconsistent
with attached documents, or allegations contrary to facts
which are judicially noticed. [Citations.] Thus, a pleading
valid on its face may nevertheless be subject to demurrer
18. Because we conclude that the City was not required to
give Briles notice of the landmarking hearing and decision, we
need not address whether his purported lack of notice tolled the
90-day statutory period. For the sake of completeness, we note
that (1) Haselhoff offers no legal authority that section 65009’s 90day time period can be tolled, and (2) case law has expressly held
otherwise. (See, e.g., Royalty Carpet Mills, Inc. v. City of Irvine
(2005) 125 Cal.App.4th 1110, 1125, 23 Cal. Rptr. 3d 282 [§ 65009
“requires dismissal of any proceeding that is not filed and served
by an absolute time limit”].)
28a
Appendix A
when matters judicially noticed by the court render the
complaint meritless.” (Del E. Webb Corp. v. Structural
Materials Co., supra, 123 Cal.App.3d at p. 604.)
D.
Alleged errors after the November 8, 2010,
hearing
Haselhoff further argues that alleged violations by
the City of its own Municipal Code after the November
8, 2010, hearing invalidate the landmark designation. But
he offers no legal authority in support of his contention
that the City’s alleged post-decision errors invalidate the
landmark designation a fortiori, particularly given the
fact that Haselhoff is deemed to have had notice of the
designation as set forth above. (Cal. Rules of Court, rule
8.204(a)(1)(B); Fettig v. Hilton Garden Inns Management
LLC (2022) 78 Cal.App.5th 264, 269, 293 Cal. Rptr. 3d 404.)
To the extent Haselhoff argues that the City failed to
make a timely decision on the landmarks application, he
is mistaken. As set forth above, Santa Monica Municipal
Code section 9.56.120(C), mandates that a “public
hearing to determine whether the improvement merits
designation shall be scheduled before the Landmarks
Commission within 100 days of the determination that
the application is complete.” Here, at the September 13,
2010, hearing, the Landmarks Commission made and
approved a motion to submit an application to designate
the property a landmark. The application appears to have
been submitted the same day. Assuming without deciding
that the application was deemed “complete” on that date,
a public hearing had to be scheduled within 100 days. It
29a
Appendix A
was—the hearing on the subject landmarks application
was held on November 8, 2010.
Santa Monica Municipal Code section 9.56.120(E)
has no bearing on this case. That provision applies only
to continued public hearings, which “must be completed
within 35 days from the date set for the initial public
hearing.” (Santa Monica Mun. Code, § 9.56.120(E).) But
the hearing on the subject landmarks application was
never continued. Thus, this provision does not apply.
Admittedly, there was a hearing on August 9, 2010.
But at that hearing, the Landmarks Commission intended
to discuss whether to file an application. That hearing
was continued, but no application was filed until after
the September 13, 2010, hearing. Thus, Santa Monica
Municipal Code section 9.56.120(E) is inapplicable.19
E. Landmarks ordinance is constitutional
Haselhoff argues that the City’s landmarks ordinance
is unconstitutional.
19. We decline Haselhoff’s request to expand Santa Monica
Municipal Code section 9.56.120(E) and “deem[] [the application]
disapproved” for the alleged post-decision errors. The plain
language of the provision is limited to continuances of public
hearings, and that language controls. (Tsasu LLC v. U.S. Bank
Trust, N.A. (2021) 62 Cal.App.5th 704, 718, 277 Cal. Rptr. 3d 76.)
30a
Appendix A
1.
Facial challenge
“‘Facial challenges to statutes and [local enactments]
are disfavored.’” (Beach & Bluff Conservancy v. City of
Solana Beach (2018) 28 Cal.App.5th 244, 263, 239 Cal.
Rptr. 3d 86 (Beach & Bluff ).)
“A facial challenge to the constitutional validity of an
ordinance considers only the text of the ordinance, not
its application to the plaintiffs’ particular circumstances.
[Citation.] Our analysis begins with the strong presumption
that the ordinance is constitutionally valid. [Citations.] We
resolve all doubts in favor of the validity of the ordinance.
[Citation.] Unless conflict with a provision of the state
or federal Constitution is clear and unmistakable, we
must uphold the ordinance. [Citations.] Plaintiffs bear
the burden of demonstrating that the ordinance is
unconstitutional in all or most cases. [Citation.]” (Allen
v. City of Sacramento (2015) 234 Cal.App.4th 41, 54, 183
Cal. Rptr. 3d 654 (Allen).)
a.
Alleged unconstitutional taking
An ordinance “is not an unconstitutional regulatory
taking if it (1) substantially advances a legitimate
government interest, and (2) does not deprive [the property
owners] of all economically viable use of their property.”
(Montclair Parkowners Assn. v. City of Montclair (1999)
76 Cal.App.4th 784, 791, 90 Cal. Rptr. 2d 598 (Montclair).)
“The denial of the highest and best use does not constitute
an unconstitutional taking of the property. [Citation.] Even
where there is a very substantial diminution in the value of
31a
Appendix A
land, there is no taking. [Citations.]” (Long Beach Equities
v. County of Ventura (1991) 231 Cal.App.3d 1016, 1036, 282
Cal. Rptr. 877.) Thus, “‘an ordinance is safe from a facial
challenge if it preserves, through a permit procedure or
otherwise, some economically viable use of the property.’”
(Beach & Bluff, supra, 28 Cal.App.5th at p. 265.)
Haselhoff did not meet his burden of showing that
the landmarks ordinance is facially unconstitutional.
The ordinance does not deny a property owner of “all
economically viable use” of his property. (Montclair,
supra, 76 Cal.App.4th at p. 791, italics added.)
Although the filing of an application for a landmark
prohibits any construction to the proposed landmark
until the Landmarks Commission makes a determination
(Santa Monica Mun. Code, § 9.56.120(B)), that halting of
construction is for a brief period of time (Santa Monica
Mun. Code, § 9.56.120(C) & (E)). “Unless a temporary
moratorium is total and is unreasonable in purpose,
duration or scope, the restrictions it places on development
are not compensable. [Citation.]” (Long Beach Equities
v. County of Ventura, supra, 231 Cal.App.3d at p. 1035.)
Because the temporary hold on construction under the
landmarks ordinance is reasonable in purpose, duration,
and scope, the allegedly “unconstitutional ‘temporary
taking[]’” is constitutional. (First English Evangelical
Lutheran Church v. County of Los Angeles (1989) 210
Cal.App.3d 1353, 1372, 258 Cal. Rptr. 893.)
32a
Appendix A
b.
Landmarks Commission can nominate
a property
Relying upon Woody’s Group, Inc. v. City of Newport
Beach (2015) 233 Cal.App.4th 1012, 183 Cal. Rptr. 3d 318
(Woody’s), Haselhoff asserts that the landmarks ordinance
is unconstitutional because the Landmarks Commission
can nominate a property itself and then decide whether
to designate the property a landmark. Haselhoff claims
that the Landmarks Commission’s ability to nominate a
property amounts to it improperly being a “judge in [its]
own cause.” (Id. at p. 1027.)
Woody’s is readily distinguishable. In that case,
a city councilmember who had “voiced his ‘[strong[]’
opposition to [a restaurant’s] application [for a permit]
was allowed to appeal the approval of . . . [the] application
to the very body on which he [sat], where he did his best
to convince his colleagues to vote with him against the
application.” (Woody’s, supra, 233 Cal.App.4th at p. 1016.)
The Court of Appeal found that the councilmember’s
appeal was improper because he did not fall within the
scope of persons who were eligible to appeal under the
Newport Beach Municipal Code. (Id. at pp. 1017, 10231025.) Furthermore, “allowing a biased decision maker
to participate in the decision is enough to invalidate the
decision.” (Id. at p. 1022.)
Here, in contrast, the City’s landmarks ordinance
specifically allows the Landmarks Commission to
nominate a property for designation. And, all we have is
Haselhoff’s speculation that the Landmarks Commission’s
33a
Appendix A
authority to nominate a property for designation somehow
renders the commission automatically and always biased.20
2.
As-applied challenge
“An as-applied challenge asserts that the manner of
enforcement against an individual or class of individuals
or the circumstances in which the ordinance is applied is
unconstitutional.” (Allen, supra, 234 Cal.App.4th at p. 56.)
Even though Haselhoff contends, in one sentence,
that the landmarks ordinance is unconstitutional as
applied, he offers no substantive argument in support
of this contention. (Cal. Rules of Court, rule 8.204(a)(1)
(B).) As such, it has been forfeited. (Mansell v. Board of
Administration (1994) 30 Cal.App.4th 539, 545-546, 35
Cal. Rptr. 2d 574.)
F.
Leave to amend
Finally, Haselhoff argues that the trial court abused
its discretion in denying him leave to file his proposed
20. We do not consider Haselhoff’s citation to a superior
court judgment. “[A]n opinion of a California Court of Appeal or
superior court appellate division that is not certified for publication
or ordered published must not be cited or relied on by a court or
a party in any other action.” (Cal. Rules of Court, rule 8.1115(a).)
Certainly that rule applies to unpublished trial court judgments.
Moreover, Haselhoff has not demonstrated that such a judgment
can be considered here under the doctrine of collateral estoppel.
(Gikas v. Zolin (1993) 6 Cal.4th 841, 849, 25 Cal. Rptr. 2d 500, 863
P.2d 745 [elements of collateral estoppel].) Finally, his request for
judicial notice, set forth in one sentence of his appellate opening
brief is insufficient. (Cal. Rules of Court, rule 8.252(a).)
34a
Appendix A
SAC because it resolved the trial court’s concerns. He
is mistaken. The proposed SAC continues to allege that
Briles was the property owner. It also alleges that the
City’s landmarking ordinance was unconstitutional
because the property “cannot be developed to its highest
best use,” allegations which do not constitute an unlawful
taking. And, the SAC is replete with improper legal
citations and legal argument. Finally, the SAC purports
to allege the same claims that we, like the trial court, have
rejected. Under these circumstances, we find no abuse of
discretion.
G.
All remaining issues are moot
In light of our conclusion that Haselhoff’s action is
time-barred, we need not address the other arguments
raised by the parties, including whether Haselhoff failed
to exhaust his administrative remedies.
DISPOSITION
The judgment is affirmed. The City is entitled to costs
on appeal.
We concur:
CHAVEZ
HOFFSTADT
ASHMANN-GERST
, J.
, J.
, Acting P. J.
35a
Appendix
B
APPENDIX B — JOINT
STIPULATED
JUDGMENT
IN THE SUPERIOR COURT OF THE STATE
OF CALIFORNIA FOR THE COUNTY OF LOS
ANGELES, FILED MAY 27, 2022
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
Case No.: 19-SMCV-00850
OTTO L. HASELHOFF, INDIVIDUALLY AND
AS TRUSTEE OF THE OTTO AND LARA
HASELHOFF FAMILY TRUST DATED JULY
27, 2006, AND AS ASSIGNEE OF GREG BRILES
INDIVIDUALLY AND AS PARTNER AND/OR
TRUSTEE,
Plaintiff/Petitioner,
v.
CITY OF SANTA MONICA, A MUNICIPAL
CORPORATION; DOES 1–250,
Defendants/Respondent.
Action Filed: May 7, 2019
Amended Complaint Filed: December 5, 2019
Filed May 27, 2022
Assigned to Hon. H. Jay Ford, III
Trial Date: None Dept.: O
[PROPOSED] JOINT STIPULATED JUDGMENT
36a
Appendix B
WHEREAS, Plaintiff Otto L. Haselhoff (“Plaintiff ”)
commenced this action against Defendant City of Santa
Monica (“Defendant” or “City”) on or about May 7, 2019;
and
WHEREAS, in a First A mended Petition and
Complaint dated December 5, 2019, Plaintiff asserted five
causes of action: First Cause of Action (“Petition for Writ
of Mandate”), Second Cause of Action (“Constitutional
Damages” Claims), Third Cause of Action (“Slander of
Title” Claims related to the “2013 Settlement Agreement”),
Fourth Cause of Action (“Brown Act Damages” Claims),
and Fifth Cause of Action (“Declaratory Relief ’ Claims);
and
W HEREA S, on or about Febr uar y 2 0, 2 02 0,
Defendant filed a Demurrer and Motion to Strike; and
WHEREAS, on August 10, 2020, the Court released a
tentative decision (the “August 10th Tentative Decision”)
which expressed the Court’s tentative view to sustain
Defendant’s Demurrer as to the Writ Claim without leave
to amend. A copy of the August 10th Tentative Decision
as memorialized in an August 11, 2020 Minute Order is
attached as Exhibit A; and
WHEREAS, the Court’s August 10th Tentative
Decision overruled the Defendant’s Demurrer as to the
other causes of action on procedural and other grounds.
The Court’s August 10th Tentative Decision also granted,
in part, the Defendant’s Motion to Strike as to certain
categories of allegations; and
37a
Appendix B
WHEREAS, on August 11, 2020, the above-captioned
matter came on for hearing regarding Defendant’s
Demurrer and Motion to Strike. All parties were
represented through their respective attorneys; and
WHEREAS, at the August 11, 2020 hearing, the
Court: (1) granted the Defendant’s Motion to Strike in
part; (2) continued the Demurrer hearing until December
15, 2020, (3) allowed Plaintiff to submit a proposed Second
Amended Complaint to correct the deficiencies outlined
in the August 10th Tentative Decision, (4) continued
Defendant’s time to answer the operative pleading to a
time to be determined at the December 15, 2020 hearing;
and (5) allowed the parties to submit additional briefing
as to other causes of action; and
WHEREAS, at the December 15, 2020 Hearing, the
Court offered the parties an opportunity to address any
issues not covered by the submitted supplemental briefing
and took the matter under advisement; and
WHEREAS, following the December 15, 2020
Hearing, the Court issued a further written decision
that sustained the demurrer without leave to amend
Plaintiff’s First, Second, Fourth, and Fifth Causes of
action and also overruled the City’s Demurrer to the Third
Cause of Action for Slander of Title and incorporated the
Court’s August 10, 2020 tentative decision, which was
memorialized in a December 15, 2020 Minute Order which
is attached as Exhibit B; and
WHEREAS, the parties mediated this dispute on
April 5, 2021 and have executed a binding settlement
38a
Appendix B
agreement (the “2022 Settlement Agreement”) to resolve
claims involving (1) the 2013 Settlement Agreement,
(2) Plaintiff’s Fourth Cause of Action for Brown Act
Damages, and (3) Plaintiff’s Third Cause of Action for
Slander of Title; and
W HEREA S, the 2022 Settlement Ag reement
references certain Preserved Landmarking-related
Claims and does not in any way compromise or otherwise
impair Plaintiff’s contemplated appeal of the December
15th Ruling on (1) the First Cause of Action (“Petition
for Writ of Mandate”), (2) the Second Cause of Action
(“Constitutional Damages” Claims), and (3) the Fifth
Cause of Action Declaratory Relief as to such claims; and
W HEREA S, the 2022 Settlement Ag reement
provides that the parties will submit a proposed stipulated
judgment for the Court’s approval to permit the appeal
of the December 15th ruling as to the (1) First Cause
of Action (“Petitioner for Writ of Mandate”), (2) Second
Cause of Action (“Constitutional Damages” Claims), and
(3) Fifth Cause of Action (“Declaratory Relief ” claim as to
City, Federal and State Law claims), among other things.
NOW THEREFORE, IT IS ORDERED a nd
ADJUDGED that:
1. Plaintiff’s Writ Claim (First Cause of Action),
Constitutional Damages Claim (Second Cause of Action),
Brown Act Damages Claim (Fourth Cause of Action, and
Declaratory Judgment Claim (Fifth Cause of Action) are
dismissed with prejudice by the findings in the Court’s
39a
Appendix B
December 15th Ruling and are dismissed as of the date
of the signing of this Judgment.
2. Plaintiff’s Slander of Title Claim (Third Cause
of Action) is dismissed with prejudice as agreed to by
Plaintiff and Defendant and memorialized in the 2022
Settlement Agreement.
3. Plaintiff acknowledges that the 2022 Settlement
Agreement fully and finally resolves all other claims
involving (1) the 2013 Settlement Agreement, (2) the
Fourth Cause of Action for the Brown Act Damages
Claim, and (3) the Third Cause of Action for the Slander
of Title Claim.
4. Defendant acknowledges that neither the
2013 Settlement Agreement, nor the 2022 Settlement
Agreement resolves or releases any claims involving or
related to Plaintiff’s appeal of the December 15th Ruling
on (1) the First Cause of Action (“Petition for Writ of
Mandate”), (2) the Second Cause of Action (“Constitutional
Damages” Claims), and (3) the Fifth Cause of Action
Declaratory Relief as related to Plaintiff’s claims arising
out of issues of City, State and Federal Law.
5. Plaintiff and Defendant shall each bear their
respective costs and attorney’s fees.
6. The Par ties stipulate that this judg ment
constitutes a final order judgment for the purposes of
appeal.
40a
Appendix B
IT IS SO ORDERED AND ADJUDGED.
Dated:
May 27, 2022
/s/
Honorable H. Jay Ford III
Judge of the Superior Court
41a
Appendix B
EXHIBIT A
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
Civil Division
19SMCV00850
OTTO L. HASELHOFF, INDIVIDUALLY, AND
AS TRUSTEE OF THE OTTO AND LARA
HASELHOFF FAMILY TRUST DATED JULY
27, 2006, AND AS ASSIGNEE OF GREG BRILES
INDIVIDUALLY AND AS PARTNER AND/
OR TRUSTEE vs CITY OF SANTA MONICA, A
GOVERNMENTAL ENTITY
August 11, 2020
Judge:
8:30 AM
Honorable H. Jay Ford III
NATURE OF PROCEEDINGS: Hearing on Defendant
City of Santa Monica’s Demurrer—with Motion to Strike
(CCP 430.10)—to First Amended Petition and Complaint;
The Court has posted the following tentative ruling:
TENTATIVE RULING
Defendant City’s Demurrer to First Amended Petition
and Complaint [FAPC] is SUSTAINED WITHOUT
LEAVE TO AMEND as to the first cause of action for
petition for writ of mandate and OVERRULED as to
42a
Appendix B
all remaining causes of action identified in the notice
of demurrer (Slander of Title, Brown Act Claim and
Declaratory relief.)
Defendant’s Motion to Strike is GRANTED as to the
following categories of allegations identified in the Notice
of Motion: allegations re: Woody’s, allegations re: “2600
Wilshire,” the language “including diminution in value”
from ¶90, and the “irrelevant allegations.” The motion to
strike is DENIED in all other respects.
Defendant’s request for judicial notice is DENIED
as to Exhibits 24-26 (transcripts of public hearings) and
Exs. 35 and 36 (newspaper articles) and GRANTED as to
the remaining exhibits. The Court’s decision to judicially
notice the existence and filing of these documents is
not judicial notice of the truth of the documents, the
interpretation of any of these documents or any findings
of facts contained therein. “Although the existence of
a document may be judicially noticeable, the truth of
statements contained in the document and its proper
interpretation are not subject to judicial notice if those
matters are reasonably disputable. . . . When judicial
notice is taken of a document, however, the truthfulness
and proper interpretation of the document are disputable.”
Fremont Indemnity Co. v. Fremont General Corp. (2007)
148 Cal.App.4th 97, 113.
Plaintiff’s objection to “new evidence” on reply is
overruled. The “new evidence” is actually a response to
Plaintiff’s objection to Defendant’s RJN of three volumes
of evidence submitted with the demurrer and MTS.
43a
Appendix B
ANALYSIS
I.
Demurrer to first cause of action for Petition
for Writ of Mandate—SUSTAINED WITHOUT
LEAVE TO AMEND.
A.
Briles failed to exhaust administrative
remedies and Plaintiff is bound by his failure.
The landmarking decision occurred in 2010 when
Briles was allegedly the sole owner of the subject property.
Plaintiff only has standing to challenge that decision based
on his status as an assignee or successor-in-interest to
Briles. See Ojavan Investors, Inc. v. California Coastal
Com. (1994) 26 Cal.App.4th 516, 526 (“The failure to have
given appellants statutory notice of the permit hearings
is understandable since they did not own the property in
question in 1979 and 1990, the years the permits were
issued. To the extent that any predecessor in interest
lacked notice, appellants have no standing to raise such
a complaint.”) Plaintiff must therefore either allege that
Briles exhausted administrative remedies or that he was
excused from doing so by virtue of a recognized exception,
because Plaintiff stands in Briles shoes and has no greater
rights than he would on this petition. Id. at 527 (“such
predecessors in interest could not transfer or assign to
appellants any legal rights greater than they themselves
possessed . . . appellants obtained the property in question
with the same limitations and restrictions which bound
their predecessors in interest”); Serra Canyon Co. v.
California Coastal Com. (2004) 120 Cal.App.4th 663, 668
(petitioner was bound by predecessor-in-interest’s waiver
44a
Appendix B
of right to timely challenge Coastal Commission’s permit
condition by writ of mandate)(citing Ojavan)
Contrary to Plaintiff’s allegation, Santa Monica
Municipal Code §9.56.180 imposes a mandatory time limit
on any appeal of the landmarking decision. See FAPC, ¶72;
Defendant’s RJN, Bates No. CITY 0705. “Any person may
appeal a determination or decision of the Commission by
filing a notice of appeal with the Department on a form
furnished by the Department. Such notice of appeal shall
be filed within ten consecutive days commencing from the
date that such determination or decision is made by the
Commission or from the date an application is deemed
approved or disapproved because of the failure to comply
with any time period set forth in this Chapter.” See
Defendant’s RJN, Bates No. CITY 0705.
Given the 10-day time limit and the undisputed fact
that the landmarking decision occurred in 2010, only
Briles could have appealed the decision in the manner
prescribed by City of Santa Monica’s Municipal Code.
See e.g. Serra Canyon Co., supra, 120 Cal.App.4th at 668
(“The time to challenge the condition was back in 1981,
by pursuing a petition for a writ of mandate under Code
of Civil Procedure section 1094.5. Serra’s 2002 lawsuit is
far too late.”) Briles was the owner during the permissible
time to appeal, not Haselhof. The failure to appeal the
decision in accordance with the procedure provided by
the SMMC establishes a failure to exhaust administrative
remedies and “mandamus will not lie” absent an applicable
exception. See McAllister, 147 Cal.App.4th 253, 284-285;
Grant, supra, 80 Cal.App.3d at 609.
45a
Appendix B
B. Plaintiff fails to allege that Briles’s appeal
would have been futile or that Briles’s failure
to appeal was due to futility, as opposed to
inadvertence or a conscious decision not to
challenge the landmarking decision
Plaintiff fails to allege futility of the administrative
remedies provided under the SMMC based on “certainty
of outcome.” See FAPC, ¶74. “Unless a litigant can
demonstrate that the administrative agency has indicated
its predetermined decision in the litigant’s particular case,
it does not apply even if the outcome in other similar cases
is adverse to the litigant’s position.” Imagistics Internat.,
Inc. v. Department of General Services (2007) 150 Cal.
App.4th 581, 590.
Plaintiff alleges, “throughout the negotiation of
this case, the City, through the City Attorney’s Office,
has steadfastly stated that it would never, ever remove
the landmark on the property unless and until the
Court orders it to do so.” See FAPC, ¶74. Plaintiff also
alleges that other cases involving similar challenges to
landmarking decisions establish the futility of Plaintiff’s
appeal of the decision. Id.
Plaintiff’s allegations do not establish futility based on
certainty of outcome for several reasons. First, because
only Briles could have properly appealed the landmark
decision, Plaintiff must allege that Briles did not appeal
due to futility. Instead, Plaintiff alleges facts regarding
why it would have been futile for him to engage in the
administrative appeal process. Id. at ¶74.
46a
Appendix B
Second, the statements of the City Attorney’s Office
after this litigation was filed do not establish the negative
outcome of a proper appeal with certainty. “It is specious
to contend that it would be futile to exhaust administrative
remedies neither having attempted to do so nor having
developed a record establishing futility before filing suit.”
Black v. City of Rancho Palos Verdes (2018) 26 Cal.App.5th
1077, 1090 (city’s statements in record did not support
a finding of futility where they were all elicited by the
landowners and their counsel after the landowners had
already filed suit). Moreover, the statements of the City
Attorney’s Office are insufficient to establish with certainty
how the City Council would act on such an appeal. See La
Costa Beach Homeowners Assn. v. Wayne (1979) 89 Cal.
App.3d 327, 331 (staff’s recommendations did not establish
with certainty outcome of appeal before agency absent
showing that agency followed staff recommendations
mechanically); 2A Cal. Jur. 3d Administrative Law, §725.
Third, the outcome of other cases before the City
does not establish with certainty the outcome of a proper
appeal with respect to Plaintiff’s landmarking decision,
regardless of how similar the other cases are. See
Imagistics Internat., Inc., supra, 150 Cal.App.4th at 590
(petitioner’s use of historical data to establish futility
of alternate protest procedure was unavailing). The
outcome of the Levaan v. City of Santa Monica (the “2600
Wilshire Case”) case before Judge Rosenberg is therefore
irrelevant to the futility allegations.
Fourth, the futility exception does not apply where
the failure to exhaust administrative remedies is due to
the petitioner’s inadvertence. See Pacific Coast Medical
47a
Appendix B
Enterprises v. Department of Benefit Payments (1983)
140 Cal.App.3d 197, 215 (futility exception did not
apply where petitioner admitted that failure to exhaust
administrative remedies was due to its own inadvertence,
not futility); 2A Cal. Jur. 3d Administrative Law, §725
(“The fact that administrative procedures may be futile
does not excuse the appellant’s obligation to pursue
them. In particular, the futility exception does not apply
. . . where the failure to exhaust remedies was in fact
due to the petitioner’s inadvertence.”) Plaintiff does not
allege any facts pertaining to Briles’ failure to challenge
the landmarking decision. To the extent Briles failed to
appeal due to his inadvertence, Plaintiff could not argue
the futility exception.
Finally, while Plaintiff alleges Defendant failed to
properly provide notice of the landmarking application
and the hearing thereon in accordance with the SMMC,
Plaintiff does not allege that Briles was completely ignorant
that his property was in the process of being landmarked
or that it had been landmarked. Plaintiff fails to allege
that Briles did not have actual or constructive notice of
the landmark application, the hearing or the approval of
landmark status for his property. In order to properly
allege futility as to Briles’s failure to appeal, Plaintiff
was required to allege facts explaining Briles’s failure to
appeal, including his lack of actual or constructive notice
that his property was being landmarked or had been
landmarked, if that is Plaintiff’s position.
Plaintiff fails to establish that he can allege the
futility exception as to Briles’s failure to exhaust available
48a
Appendix B
administrative remedies. In fact, based on the documents
submitted for judicial notice by Defendant and Defendant’s
arguments on demurrer, Briles purportedly knew of the
potential landmark status prior to purchase, sought tax
benefits based on the property’s landmark status himself
or through his partner Culotti and renovated the property
in compliance with landmark requirements per multiple
Certificates of Appropriateness. See Defendant’s RJN,
Exs. 19-23. Such facts would establish waiver by Briles
to challenge the landmarking decision, which would bind
Plaintiff and prevent him from attacking the decision
by writ of mandate per Serra Construction and Ojavan.
Plaintiff had to address these points for the Court to
justify granting leave to amend as to the first cause of
action for petition for writ of mandate. See Hendy v.
Losse (1991) 54 Cal.3d 723, 742. Plaintiff fails to do so and
offers no clarity in his opposition as to Briles’s failure to
challenge the landmarking decision in 2010 or anytime
during his ownership of the property.
C.
Plaintiffs Petition for Writ of Mandate is
barred by the Statute of Limitations under GC
§65009.
Government Code §65009(c)(1) applies a 90-day
limitations period to any challenges to the governmental
acts specified thereunder. “Under section 65009,
subdivision (c)(E)(1), the 90-day rule applies to ‘any
decision on the matters listed’ in section 65901, and one
of the ‘matters listed’ in section 65901 is a zoning board
or zoning administrator’s decision on ‘conditional uses or
other permits’ or variance applications, or its ‘exercise [of ]
any other powers granted by local ordinance.’” Weiss v.
49a
Appendix B
City of Del Mar (2019) 39 Cal.App.5th 609, 620 (GC §65009
applied to petition for writ of mandate challenging city’s
denial of petitioner’s request for order requiring neighbor
to trim trees interfering with petitioner’s ocean view).
Moreover, “section 65009 expressly incorporates the
‘matters’ listed in sections 65901 and 65903, regardless
of the legislative body charged with making the decision.
The courts have rejected the notion that the reviewing
body, rather than the underlying decision being reviewed,
determines the applicability of Section 65009.” Save
Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th
148, 157 (GC §65009 applied to petition challenging
agreement between city and PG&E that amounted to
permit or variance).
Plaintiff is challenging a decision to designate the
property a landmark pursuant to Article 9 (“Planning and
Zoning”), Division 6, Chapter 9.56 of the Santa Monica
Municipal Code. See Defendant’s RJN, Exhibit 39. The
landmarking decision was an exercise of the City’s zoning
powers granted by local ordinance and therefore qualifies
as a decision on matters listed in GC §65901. As such, GC
§65009(c)’s 90-day limitations period applies to Plaintiff’s
petition for writ of mandate. “[N]o action or proceeding
shall be maintained . . . unless the action or proceeding
is commenced and service is made on the legislative body
within 90 days after the legislative body’s decision.” GC
§65009(c)(1). Based on the face of the complaint, the 90days expired nearly a decade ago.
Plaintiff alleges Defendant failed to give proper notice
of the hearing or the landmarking decision to Briles as
50a
Appendix B
owner of the property and argues this failure to comply
excuses him from complying with the 90-day deadline.
However, for the reasons stated in connection with the
exhaustion of remedies issue, Plaintiff’s allegations of
excuse are insufficient. Nearly a decade has passed since
the property was landmarked and Plaintiff fails to allege
that Briles was ignorant of the landmarking hearing or the
decision during that entire time, nor does Plaintiff provide
any explanation for Briles’s failure to bring challenge the
landmarking decision earlier. Plaintiff therefore fails to
sufficiently plead excuse, tolling or some other basis to
avoid the statutory bar under GC §65009.
Plaintiff’s argument that, based on GC §65009(b), GC
§65009(c)’s limitations period only applies to decisions
where there was a properly noticed hearing, which he
is alleging did not occur here. However, GC §65009(b)
merely limits what issues may be raised during an attack
on a decision made after a properly noticed hearing: “In
an action or proceeding to attack, review, set aside, void,
or annul a finding, determination, or decision of a public
agency made pursuant to this title at a properly noticed
public hearing, the issues raised shall be limited to those
raised in the public hearing or in written correspondence
delivered to the public agency prior to, or at, the public
hearing.” GC §65009(b)(1). Subsection (b)(1) does not
require a properly noticed public hearing to “trigger”
subsection (c) or any part of GC §65009.
51a
Appendix B
II. Demurrer to 3rd cause of action for slander of
title—OVERRULE
A.
Res Judicata does not apply based on the
allegations of the complaint and judicially
noticeable documents.
Defendant asserts res judicata arises from the 2015
Arbitration Award, which was confirmed and incorporated
into the final judgment entered in SC123035. See
Defendant’s RJN, Ex. 32. Defendant fails to establish
that res judicata applies to bar Plaintiff’s cause of action
for slander of title against it.
First, the cause of action at issue is slander of title,
which involves an entirely different primary right than
that asserted by Briles in SC123035. Briles was asserting
violations of his rights as Culotti’s partner in SC 123035.
The slander of title claim does not involve violation of
Briles’s rights as a partner. Because the slander of title
claim involves a different primary right from that asserted
in SC123035, the slander of title claim is a different cause
of action from that raised in SC123035 and the 2015
arbitration, and it does not qualify as a “cause of action”
that “could have been raised” in those prior proceedings.
Second, Briles could not have asserted a claim for
slander of title against Culotti in SC 123035, because
Plaintiff alleges it was the City who recorded the allegedly
invalid 2013 Settlement Agreement against the property,
not Culotti. See FAPC, ¶86. As such, Defendant fails to
establish that a slander of title claim “could have been
52a
Appendix B
raised” in SC 123035 or the arbitration between Culotti
and Briles for purposes of res judicata
Culotti was not “in privity” with the City for purposes
of liability arising from slander of title. The City’s alleged
liability for slander of title arises from the publication of
a false and unprivileged statement, not the mere creation
of that false statement. Culotti’s purported liability would
be for invalidly executing the 2013 Settlement in violation
of her partnership agreement with Briles, not the act of
recording that agreement against the Property.
Moreover, res judicata requires identity of the parties
to be bound. The City is not the party to be bound by
res judicata. Plaintiff is the party to be bound and it is
undisputed that Plaintiff is in privity with Briles.
Third, Defendant is arguing that the issue of the 2013
Settlement Agreement’s validity could have been raised in
the 2015 Arbitration and SC123035. Whether an issue was
determined in a prior proceeding, such that a party may
not relitigate it, requires application of collateral estoppel,
which Defendant does not argue, nor could it, given the
requirement that the issue have actually been litigated.
See Murphy v. Murphy (2008) 164 Cal.App.4th 376, 401.
Finally, Defendant argues Plaintiff is judicially
estopped from disputing the validity of the 2013
Settlement Agreement based on Briles’s failure to dispute
its validity in the 2015 Arbitration. However, Defendant
fails to provide authority holding that the failure to
assert the invalidity of the 2013 Settlement Agreement
53a
Appendix B
is the equivalent of affirmatively asserting its validity
for purposes of judicial estoppel. Defendant also fails to
establish that Briles adopted and successfully asserted the
position that the 2013 Settlement Agreement was valid in
the 2015 Arbitration. In fact, the 2015 Arbitration Award
contains no references to the 2013 Settlement Agreement.
See Defendant’s FUN, Ex. 32, Bates No. CITY 0624-0633.
C.
Slander of title is sufficiently pled
“Slander or disparagement of title occurs when a
person, without a privilege to do so, publishes a false
statement that disparages title to property and causes
the owner thereof “ ‘some special pecuniary loss or
damage. The elements of the tort are (1) a publication, (2)
without privilege or justification, (3) falsity, and (4) direct
pecuniary loss. If the publication is reasonably understood
to cast doubt upon the existence or extent of anther’s
interest in land, it is disparaging to the latter’s title. The
main thrust of the cause of action is protection from injury
to the salability of property, which is ordinarily indicated
by the loss of a particular sale, impaired marketability or
depreciation in value.” Sumner Hill Homeowners’ Assn.,
Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th
999, 1030.
Defendant argues factual issues that may not be raised
on demurrer. Defendant argues the recordation of the 2013
Settlement Agreement is privileged under CC §47(e),
which provides “[a] privileged publication or broadcast is
one made: . . . the publication of the matter complained of
was for the public benefit.” However, accepting the facts
54a
Appendix B
as true, the Court is hard pressed to find on demurrer
that publication of a false statement that disparages title
to property was done for the public benefit.
Defendant argues that the 2013 Settlement Agreement
was not false and it was negligent in recording it. However,
the Court must accept Plaintiff’s allegation of falsity
and scienter as true on demurrer, as well as Plaintiff’s
allegations that the 2013 Settlement Agreement was
invalid, because it was entered into by an unauthorized
person on behalf of a nonexistent entity. See FAPC, ¶¶4249, 86. As stated above, the face of the complaint and
the judicially noticeable documents do not establish the
validity of the 2013 Settlement Agreement for purposes
of demurrer.
D.
The slander of title claim is not clearly and
affirmatively time barred based on the face
of the complaint and the judicially noticeable
evidence
Defendant argues the three-year limitations period
under CCP §338(g) bars the slander of title claim,
because the 2013 Settlement Agreement was recorded
on 12-24-13 and the Joint Stipulation filed in the 2015
Arbitration references the 2013 Settlement Agreement.
See Defendant’s Request for RJN, Ex. 27, Bates No. CITY
493-497.
Neither of these arguments justifies sustaining
demurrer based on SOL. “A cause of action for slander of
title accrues, and the statute begins to run, when plaintiff
could reasonably be expected to discover the existence of
55a
Appendix B
the claim.” Stalberg v. Western Title Ins. Co. (1991) 230
Cal.App.3d 1223, 1230. As such, the date of recordation is
not necessarily the date of accrual. Whether Briles should
have reasonably been expected to discover the claim on the
date of recordation is a question of fact. “When a plaintiff
reasonably should have discovered facts for purposes of
the accrual of a cause of action or application of the delayed
discovery rule is generally a question of fact, properly
decided as a matter of law only if the evidence (or, in this
case, the allegations in the complaint and facts properly
subject to judicial notice) can support only one reasonable
conclusion.” Stella v. Asset Management Consultants, Inc.
(2017) 8 Cal.App.5th 181, 193.
In addition, the Joint Stipulation filed in the 2015
Arbitration by Briles only admits the genuineness of
the copy of the 2013 Settlement Agreement thereto. See
Defendant’s Request for RJN, Ex. 27, Bates No. CITY 496,
Item 131. The Joint Stipulation mentions nothing of the
recordation of the 2013 Settlement Agreement, which is
the act that forms the basis of the slander of title claim, not
the execution of the agreement itself. Plaintiff also alleges
that Briles stated he did not discover that the Settlement
Agreement had been recorded until escrow with Plaintiff.
This allegation must be accepted as true. See FAPC, ¶43.
Finally, Plaintiff argues the Defendant’s refusal to
remove the 2013 Settlement Agreement from the record or
otherwise rectify its wrongful recordation is a continuing
wrong subject to the doctrine of continuing accrual for
purposes of statute of limitations. Defendant did not
respond to that argument on reply.
56a
Appendix B
Defendant fails to establish that the slander of title
claim is clearly and affirmatively time barred. Demurrer
on this ground must be overruled.
III. Demu r rer to all other causes of action —
OVERRULE
The notice of demurrer only identifies the first cause of
action for petition for writ of mandate, 3rd cause of action
for slander of title, the 4th cause of action for Brown Act
Claim and the 5th cause of action for declaratory relief.
No other causes of action are identified. With respect to
the Brown Act Claim and the declaratory relief claim,
however, no arguments are made in the memo of points
and authorities in support of the demurrer thereto.
Demurrer is therefore overruled as to the Brown Act
Claim and the declaratory relief claim on those procedural
grounds.
IV. Motion to Strike—GRANT IN PART AND DENY
IN PART
“The court may, upon a motion made pursuant to
Section 435, or at any time in its discretion, and upon
terms it deems proper: (a) Strike out any irrelevant, false,
or improper matter inserted in any pleading. (b) Strike
out all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or
an order of the court.” CCP §436. The grounds to strike
must appear from the face of the complaint or judicially
noticeable documents. CCP §437.
57a
Appendix B
“Motions to strike can be used to reach defects in
or objections to pleadings that are not challengeable by
demurrer . . . Moreover, a motion to strike can be used
to attack the entire pleading, or any part thereof—i.e.,
even single words or phrases (unlike demurrers).” Edmon
and Kernow, Civil Practice Guide: CPBT (Rutter Group
2020), ¶7:156. “The bench and bar are used to thinking
of motions to strike as a way of challenging particular
allegations within a pleading.” Baral v. Schnitt (2016) 1
Cal.5th 376, 393-394. Case law also permits a motion to
strike “sham pleadings.” Ricard v. Grobstein, Goldman,
Stevenson, Siegel, LeVine & Mange] (1992) 6 Cal.App.4th
157, 162 (suit “sham” because admittedly filed solely to
circumvent court’s adverse ruling in earlier suit).
Using the categories identified in the Defendant’s
Notice of Motion to Strike, the Court rules as follows:
Allegations that Briles purchase the Property as an
Individual—DENY. These allegations are not irrelevant,
false or improper. These allegations do not assert that
Briles purchased the property “for” himself or for the
Partnership. These allegations only allege that Briles was
the record owner of the property when the landmarking
process was underway and that the City failed to provide
him notice based on that status. Thus, they are not “false”
based on the judicially noticeable documents wherein
Briles admitted he was holding the property as an asset of
his partnership with Culotti despite the grant deed being
in his name as an individual. See Defendant’s RJN, Ex. 28
and Ex. 29, CITY 493-497. In fact, the Joint Stipulation
filed in the 2015 Arbitration stipulates that the Grayson
58a
Appendix B
Estate deeded the property to Greg Briles, a single man
on 7-9-10 and that deed was recorded on 10-22-10. Id. at
Ex. 29, CITY 494, Item 5.
Likewise, whether Culotti was entitled to bind the
partnership in a specific instance, e.g. the 2013 Settlement
Agreement, is disputed and such a dispute cannot be
resolved based on the judicially noticed documents
or the complaint. The Court can take judicial notice
of the court records, which includes the Partnership
Agreement that was filed in the prior proceedings, but
it cannot take judicial notice of the truth of the contents
of these documents or a particular interpretation of such
documents to resolve the dispute over Culotti’s authority
and the validity of the 2013 Settlement Agreement. See
Fremont Indemnity Co. v. Fremont General Corp. (2007)
148 Cal.App.4th 97, 113. It can only take judicial notice of
the existence of these documents and that they were filed
in a prior action.
Allegations re: Woody’s case (identified in paragraphs
22-27 of the motion to strike)—GRANTED. These
allegations are irrelevant and improper. The complaint/
petition’s inclusion of allegations detailing the facts and
legal implications of a specific case beneficial to Plaintiff s
case is improper. They are irrelevant to Plaintiff’s stating
a cause of action against Defendant.
Allegations re: Equal Protection—DENY. Defendant
fails to establish how the equal protection allegations are
false, irrelevant or improper. Defendant’s argument that
an equal protection claim “fails as a matter of law” is not
59a
Appendix B
an argument to strike those allegations based on falsity,
irrelevance, impropriety or failure to draft in conformity
with the law, but a demurrer argument to a cause of action
for violation of constitutional rights. Defendant cannot
circumvent the page limit and procedural requirements
applied to demurrers by including demurrer arguments
in a motion to strike.
Allegations re: Levaan v. City of Santa Monica (“2600
Wilshire” allegations” identified in paragraphs 29-30 of the
motion to strike)—GRANT. These allegations reference
a prior action that was before Judge Rosenberg that also
involved a landmark dispute with the City of Santa Monica.
These allegations are irrelevant to the action. The outcome
of that case, which never generated a published or even
unpublished appellate opinion, is irrelevant to this action.
Allegations re: Partnership—DENY. These allegations
pertain to the authority of Culotti to bind Briles and the
partnership and the validity of the Settlement Agreement.
Whether Culotti had authority to execute the Settlement
Agreement and whether the Settlement Agreement
was valid is not apparent from the face of the judicially
noticeable documents. None of the documents address
directly the issue of Culotti’s authority in the specific
instances challenged by Plaintiff, namely execution of the
2013 Settlement Agreement.
Allegation that Briles was Aware of the Settlement
Agreement no Later than 2015 Arbitration—DENY.
Plaintiff’s allegation at 1143 does not claim Briles was
ignorant of the “existence” of the Settlement Agreement,
60a
Appendix B
only that he was ignorant of the “existence of the . . .
Settlement Agreement on title,” i.e. its recordation against
the property. As such, 1143 is not “false” based on the face
of the complaint or judicially noticeable evidence.
Brown Act allegations—GRANT as to “including
diminution in value” in 1190 and DENY as to remaining
(identified in paragraph nos 35-38 of the motion to strike).
Plaintiff makes an improper claim for damages in ¶¶8890. “Damages . . . are not among the remedies provided
by law for a violation of the Brown Act (§§ 54960, 54960.l,
54960.5), and to the extent costs and fees are available
to successful Brown Act litigants, the Brown Act
specifically provides that those costs and fees will not be
borne personally by government officials or employees.
(§ 54960.5.)” Holbrook v. City of Santa Monica (2006) 144
Cal.App.4th 1242, 1254. 990 is the only paragraph that
contains an improper reference to recovery of “damages”
in the Brown Act Claim. The request for damages arising
from diminution of value is therefore unsupported and
the language “including diminution of value” is properly
stricken.
Regarding the remaining Brown Act allegations,
Defendant fails to demonstrate how these allegations are
false, improper, irrelevant or not drafted in conformity
with the state’s laws. Defendant instead argues statute
of limitations and failure to state a claim which may be
raised in a demurrer but are not appropriately asserted
in a motion to strike. The Court notes defendant listed its
challenge to the Brown Act Claim in the notice of demurrer
but did not argue in the memorandum in support of its
61a
Appendix B
demurrer. Defendant cannot circumvent the procedural
requirements applicable to the demurrer by arguing the
merits of the demurrer in the motion to strike.
Irrelevant Allegations (identified in paragraphs 3941 of the motion to strike—GRANT. These allegations
are irrelevant to stating Plaintiff’s remaining causes of
action. They include allegations impugning the character
of Defendant’s employees and allegations regarding
another completely unrelated landmark proceeding as to
a completely unrelated property.
Defendant is to submit a proposed order the properly
identifies all the allegations ordered stricken.
***
END OF TENTATIVE RULING
***
Pursuant to Government Code sections 68086,
70044, California Rules of Court, rule 2.956, and the
stipulation of appearing parties, Julie Park, CSR #13925,
certified shorthand reporter is appointed as an official
Court reporter pro tempore in these proceedings, and is
ordered to comply with the terms of the Court Reporter
Agreement. The Order is signed and filed this date.
The matter is called for hearing and argued.
Defendant’s Motion to Strike is GRANTED as to
the following categories of allegations identified in the
Notice of Motion: Allegations re: Woody’s case (identified
in paragraphs 22-27 of the motion to strike); Allegations
re: Levaan v. City of Santa Monica (“2600 Wilshire”
62a
Appendix B
allegations” identified in paragraphs 29-30 of the motion to
strike); Brown Act allegations as to “including diminution
in value” in ¶90; and Irrelevant Allegations (identified in
paragraphs 3941 of the motion to strike). The motion to
strike is DENIED in all other respects.
Defense counsel will file a Motion for Judgment on the
Pleadings addressing any causes of action overruled in the
Demurrer based on procedural grounds by October 20,
2020. Said Motion for Judgment on the Pleadings will be
heard on December 15, 2020 at 8:30 a.m. in Department
O at the Santa Monica Courthouse.
Plaintiff is to submit supplemental opposition (not
to exceed 10 pages) to the Demurrer and a proposed
Amended Complaint with paragraphs stricken pursuant
to the granting of the Motion to Strike, and opposition to
the Motion for Judgment on the Pleadings by November
10, 2020. Any reply to opposition is to be filed and served
by December l, 2020.
The Demurrer is continued to December 15, 2020
at 8:30 a.m. in Department O at the Santa Monica
Courthouse.
Attorney Ben Delfin is to give notice.
63a
Appendix B
EXHIBIT B
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
Civil Division
19SMCV00850
OTTO L. HASELHOFF, INDIVIDUALLY, AND
AS TRUSTEE OF THE OTTO AND LARA
HASELHOFF FAMILY TRUST DATED JULY
27, 2006, AND AS ASSIGNEE OF GREG BRILES
INDIVIDUALLY AND AS PARTNER AND/
OR TRUSTEE vs CITY OF SANTA MONICA, A
GOVERNMENTAL ENTITY
December 15, 2020
Judge:
8:30 AM
Honorable H. Jay Ford III
NATURE OF PROCEEDINGS: Hearing on Motion
for Judgment on the Pleadings; Hearing on Demurrer—
without Motion to Strike
Pursuant to Government Code sections 68086, 70044,
and California Rules of Court, rule 2.956, Kevin Roldan,
CSR #13463, certified shorthand reporter is appointed
as an official Court reporter pro tempore in these
proceedings, and is ordered to comply with the terms of
the Court Reporter Agreement. The Order is signed and
filed this date.
64a
Appendix B
The matters are called for hearing.
The Court takes the above said matters under
submission.
Case Management Conference is scheduled for
03/19/2021 at 08:30 AM in Department O at Santa Monica
Courthouse.
Later outside the presence of counsel, the Court rules
as followings:
The Demurrer—with Motion to Strike (CCP 430.10)
to First Amended Petition of Otto Haselhoff filed by
City of Santa Monica on 02/20/2020 is Sustained in Part.
Defendant City of Santa Monica’s Demurrer to the Petition
for Writ of Mandate (first cause of action), and to the
claims for “Constitutional Damages” (second cause of
action), “Brown Act Damages” (fourth cause of action), and
Declaratory Relief (fifth cause of action) are SUSTAINED
WITHOUT LEAVE TO AMEND. The Demurrer to the
th
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.