ROBERT SCHWOB V. COUNTY OF SANTA BARBARA, ET AL
ROBERT SCHWOB V. COUNTY OF SANTA BARBARA, ET AL
Case Number
23CV02404
Case Type
Hearing Date / Time
Wed, 09/20/2023 - 10:00
Nature of Proceedings
Demurrer by Respondent/Defendant County of Santa Barbara to petition/complaint
Tentative Ruling
James F. Scafide of Figueroa Law Group, LLP for Petitioners/Plaintiffs Robert Schwob and Christine Schwob
Rachel Van Mullem / Callie Patton Kim of County Counsel’s Office for Respondent/Defendant County of Santa Barbara
[Defendants Jeff Crosby and Susan Crosby have not yet appeared in this action]
RULING
For the reasons more fully articulated below, the Court will sustain County’s demurrers to the causes of action for conspiracy and declaratory relief, with leave to amend. While the Court does not find the allegations of the petition sufficient to state a claim for administrative mandamus, or traditional mandamus based upon a ministerial duty of the County, it does find the petition sufficient to state a claim for traditional mandamus review of County’s discretionary determinations. Consequently, the Court will overrule the demurrer to the petition for writ of mandamus.
The Court will permit Petitioners/Plaintiffs leave to file an amended pleading on or before October 11, 2023. To the extent that Petitioners/Plaintiffs believe they may be able to allege valid claims for administrative mandamus or traditional mandamus arising from a ministerial duty, they may also amend their cause of action for mandamus at that time.
Petition/Complaint
Petitioners/Plaintiffs Robert Schwob and Christine Schwob (the Schwobs) filed their Petition and Complaint on June 6, 2023. They allege that they own property on 1422 East Valley Road in Santa Barbara, and Defendants Jeff Crosby and Susan Crosby (the Crosbys) own property at 551 Santa Angela Lane, which adjoins the rear of the Schwob property.
The Schwobs allege on information and belief that in 2020, the Crosbys constructed a pickleball “Sports Court” on their property, without a permit. The 31’x 60’ Court is located in the rear setback of the Crosby property, about 8 inches from the rear lot line, and 7’8” from the northern side lot line. The southeasterly corner was raised more than 30” so that the Court sits level, and a 10’ fence was constructed around the Court, with a permanent basketball hoop and backboard and pickleball net installed. It was later painted with lines for pickleball play. The Schwobs allege that through 2020, 2021, and into 2022, the Crosbys and their family and guests played pickleball at all hours of day and night, the noise from which caused the Schwobs great disturbance, particularly given that their bedroom is located less than 30’ from the Court.
In January 2022, after complaints to the County of Santa Barbara (County) by the Schwobs and others, County staff visited the Crosby property. On February 11, 2022, County issued a Notice of Violation to the Crosbys, arising from their construction of a pickleball Court in their back yard that exceeded the cumulative square foot maximum of 30% of the area of the rear setback of all structures in a rear setback. The Notice also found that the fence around the Court violated provisions of the Santa Barbara County Code, Montecito Land Use and Development Code (MLUDC), which required that any such fence be no higher than six feet. The Notice provided that the Crosbys could remedy the Court violation by removing the Court or moving the Court out of the rear setback area so that it and the ADU which the Crosbys had under construction combined totaled less than or equal to 30% of the rear setback and could remedy the fencing violation by removing the fence, reducing its height, or applying for a permit. The Notice of Violation is attached to and incorporated into the petition/complaint and establishes that the issuing agency was County’s Planning and Development Department.
In response to the Notice of Violation, the Crosbys removed the permanent pickleball net, painted over the stripes on the Court, and lowered the fence height to 6’, but continued to play pickleball by placing tape on the surface in lieu of the painted lines. At some point they apparently restriped the Court and reinstalled the permanent net.
The Schwobs again complained to the County about the continued pickleball play on the Crosby’s Court. In response, the County conducted a site inspection on September 9, 2022, after which it issued a second Notice of Violation, which provided that the Crosbys could remedy the violation by removing the Court, relocating the Court, or converting the Court into a patio, through removal of all lines from the surface indicative of use as a sports Court, and removal of the permanent net. In response, the Crosbys removed the permanent lines and net, but continue to play pickleball by again placing tape where the pickleball Court lines should be and using a “professional grade moveable Pickleball net.”
The September 9, 2022, Notice of Violation is attached to and incorporated into the petition/complaint. Certain of its contents were not the subject of express allegations in the petition/complaint, including that the County had determined that the February 11, 2022 Notice of Violation had been abated by the removal of the tennis net and sports Court lines, which converted the sports Court into a patio area, which does not count as a structure and therefore did not contribute toward the 30% encroachment into the setback. Because the Crosbys had reconverted the patio into a sports Court, the County determined them to be in violation of MLUDC Chapter 35, §§ 35.400.040.A, 35.420.040.A, and 35.442.020.4.a.(1).(c). The notice provided the Crosbys with the abatement options of either (a) removing the sports Court, or (b) converting the sports Court into a patio, by removing all lines from the surface indicative of use as a ports Court, and removal of the permanent net.
The petition contends that in issuing the Second Notice of Violation, which hung on the “thin distinctions between a fixed and moveable net, and taped or painted lines,” County colluded with the Crosbys and worked with them in an attempt to find a way around what the Code permitted. The petition alleges the County arbitrarily redefined what constitutes a sports Court, “and is now playing make-believe that this pickleball Court is just a funny looking patio.” They contend that nothing the Crosbys have done abated the cumulative square foot maximum of 30% of the area of the rear setback of all structures in a rear setback, and that violation still exists.
The Schwobs allege that they continue to be subjected to regular noise and disturbance from the playing of pickleball seven days a week, and that such noise and disturbance unreasonably interferes with their use and enjoyment of their property.
Based upon these facts, the Schwobs allege causes of action for (1) mandamus against the County, based upon their contention that County has failed to enforce provisions of the MLUDC, for which they pray for a declaration that they are the prevailing party and the Crosbys be directed to remove the Court and fencing, abate the nuisance, and restore the prior permitted use, as well as compensatory damages, attorneys’ fees, punitive damages, and prejudgment interest, and for (2) conspiracy against all Defendants, (3) private nuisance against the Crosbys only, and (4) declaratory relief against all Defendants. For the conspiracy, private nuisance, and declaratory relief causes of action, the Schwobs pray for a declaration that the Crosbys are in violation of MLUDC §§ 35.400.040.A, 35.420.040.A, 35.442.020.4.a.(1).(c) as to the sports Court, and §§ 35.400040.A, 35.430.070.C, and 35.430.070 table 3-2 as to the fencing, as well as compensatory damages, attorneys’ fees, punitive damages, and pre-judgment interest.
Respondent/Defendant County of Santa Barbara has demurred to each cause of action set forth in the petition/complaint. In support of its demurrer, it seeks judicial notice of Santa Barbara County Code, Chapter 24A (Administrative Fines), and excerpts from the Santa Barbara County Code, Montecito Land Use and Development Code.
Mandamus. County first contends that the Schwobs have failed to state facts sufficient to constitute a cause of action for either administrative mandamus or traditional mandamus. Administrative mandamus under Code of Civil Procedure section 1094.5 is inapplicable under its terms, because it only applies where a hearing and the taking of evidence is required, and the petition does not include any allegations that would require a hearing to determine whether violations have been abated, and the County Code does not require a hearing.
County also contends that it did not abuse its discretion, noting that the scope of review for abuse of discretion requires deference to the agency’s authority and expertise, prohibits the Court from reweighing the evidence or substituting its judgment, and limits the inquiry to whether the decision was arbitrary, capricious, or entirely lacking in evidentiary support. The Court considers whether the agency adequately considered all factors, and has demonstrated a rational connection between those factors, the choices made, and the purposes of the enabling statute. Deference it particularly important when reviewing zoning enforcement decisions.
Here, the Schwobs contend the County made an arbitrary ruling that the distinction between a fixed and movable net, and taped or painted lines, is sufficient to distinguish a sports Court from a patio. The facts alleged in the petition and the documents incorporated therein show the County considered all of the facts and demonstrated a rational reason for its determination that the Crosbys abated the setback violation. MLUDC defines “sports Court” as a “structure” that consists of a hardscape of other service “devoted to recreational purposes.” With removal of permanent features, County reasonably determined it was no longer devoted to recreational uses, and was not a sports Court, but a patio area, which does not constitute a “structure.” (§35.10, which defines sports Court to exclude bocce ball Courts, lawn bowling Courts, patios, and areas used for driveways or parking.) The Schwobs contend County failed to enforce code requirements related to fencing, but do not articulate any reason why lowering the fence to six feet did not abate the fencing violation. They don’t dispute that the Code exempts fences no more than 6 feet in height from permit requirements.
To the extent there is any ambiguity as to what the code requires, an agency’s view of its meaning and scope is entitled to great weight unless it is clearly erroneous or unauthorized, and the amount of deference depends on factors such as expertise in the subject of the regulation, the longevity and consistency of the interpretation, and whether the entity is authorized to make such determinations. County has “expertise and technical knowledge” of the MLUDC, which it authored, is intimately familiar, and is sensitive to the practical implications of one interpretation over another. The Schwobs do not allege that County adopted a different interpretation in the past or has inconsistently interpreted the provision. Finally, County has authority to interpret its own code. (See Gov. Code, §§ 65800, 65850.) The MLUDC provides County with authority to resolve questions about its meaning or applicability. (§§ 35.400.030(B), 35.402.020.) If County had to treat every surface on which a resident sometimes plays sports as an accessory structure, that would prohibit driveways, because the code prohibits accessory structures in front setbacks. (§35.442.020(B)(4)(a)(1).) County’s view of the meaning of its code is entitled to deference.
Finally, County contends that mandamus is inappropriate, because the Schwobs have an available adequate remedy, which they are already pursuing, in the form of their private nuisance claim against the Crosbys.
Conspiracy. County further contends that the petition fails to state facts sufficient to constitute a cause of action for conspiracy, first because it is not a separate tort, but is only a legal doctrine imposing liability on all who share with the tortfeasors a common plan or design in its perpetration. (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581-1582.) Further, bare legal conclusions, inferences, generalities, presumptions, and conclusions are insufficient to allege a conspiracy. (State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 419.) The Schwobs allege County conspired with the Crosbys to allow an illegal pickleball Court to exist, which creates a nuisance due to the noise which results. Since no public nuisance claim is alleged, there can be no conspiracy to commit a public nuisance. As to private nuisance, County contends insufficient facts are alleged to render County liable, because no facts are alleged to show County had actual knowledge a tort was planned, or that it concurred in the tortious scheme with knowledge of its unlawful purpose of injuring the Schwobs. There are no allegations of a relationship between County and the Crosbys, or any other interest that would support an inference that County sought to assist the Crosbys to commit a nuisance or other tort. Petition also does not allege facts that County committed a wrongful act in furtherance of the conspiracy, given that its interpretation of the zoning code is reasonable and entitled to deference.
Declaratory relief. County contends that the petition fails to state facts sufficient to constitute a cause of action for declaratory relief. The petition asks the Court to declare that the development in the Crosby’s back yard is in violation of the MLUDC. The provisions allegedly violated are the same as those cited in the NOVs, identifying the violations County later determined were abated. When read together, the provisions simply mean that new accessory structures must comply with setback restrictions and fences over six feet are subject to permit requirements.
County contends the judicial declaration the Schwobs seek is not necessary or proper for multiple reasons. First, declaratory relief is not appropriate to challenge an agency’s adjudicatory application of an ordinance to a specific parcel of land. (Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 154-155. Second, the cause of action raises issues identical to those in the mandamus claim, and it is therefore unnecessary and superfluous. Third, because the mandamus cause of action is insufficient as a matter of law, so is the derivative cause of action for declaratory relief. (Ball v. FleetBoston Fin. Corp. (2008) 164 Cal.App.4th 794, 800 [“where a trial Court has concluded the Plaintiff did not state sufficient facts to support a statutory claim and therefore sustained a demurrer as to that claim, a demurrer is also properly sustained as to a claim for declaratory relief which is ‘wholly derivative’ of the statutory claim,” quoting Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 794.].)
Opposition
Mandamus claim The Schwobs contend their petition states a claim for both administrative mandamus and traditional mandamus. They contend administrative mandamus is applicable, because a permit was required by law. They assert a sports Court is a sports Court, whether or not it is used as such, and what the Crosbys have on their property meets the definition of a sports Court. (§ 35.500.020.) Under the MLUDC, sports Courts are accessory residential structures or use, which require a permit. (§ 35.423.030.) While County argues that no permits were required for the Court or heightened fence, Plaintiffs argue that each requires a separate permit, and whether permits were required is a question to be determined at trial.
First, they contend the County does not get discretion in interpreting the MLUDC. Both the sports Court and the fence violations had separate permitting requirements which were ignored by County, and County cannot focus on the fence height to say no violation exists. The permanent recreational facilities were not removed, and the basketball hoop and retractable net remain. The Crosbys did not perform any conversion—the Court is a single, continuous poured smooth surface, of the dimensions to accommodate a pickle ball Court. It was built before the Crosbys built their patio, out of a different material.
Second, they contend County abused its discretion, asserting that County miscited what the Court said in Yamaha Corp. of America, giving it a different meaning. County’s position is that land use regulations are so complex that no one ever has the right to challenge what it deems to be the meaning of the regulation, because only it can understand such a complex Code, which the Schwobs characterize as “ludicrous.” County argues further that it should be given deference in enforcing statutes, citing City Council of the City of Santa Barbara v. Superior Court (1960) 179 Cal.App.2d 389, but the Schwobs are not asking the Court to command specific legislative action, but to enforce that legislation. They assert that, under well-established law, an agency’s view of the meaning and scope of its own ordinance is entitled to great weight unless it is clearly erroneous or unauthorized but contend that failing to enforce a law is clearly erroneous and an abuse of discretion. As alleged in the Petition, both the Court and the fence would, require a permit. The MLUDC defines a sports Court as a “structure” that consists of a hardscape or other surface devoted to recreational purposes. (§ 35.10) Because it has an elevation of greater than 30”, it is a structure under the code, which requires a permit. As pleaded, a violation exists; resolution of the issue should be decided upon presentation of evidence, not on demurrer.
Third, the Schwobs contend they have no adequate remedy at law, given that the County has conspired with the Crosbys to permit the unpermittable. They first advised that no permit for the sports Court was required, then worked with the Crosby’s builder to break the law, and now tries to paint this as a private neighbor dispute, but this is a legitimate dispute between Schwobs and the County. The Schwobs contend the MLUDC imposes a mandatory duty on County to commence enforcement proceedings, and mandamus lies even though other remedies may also exist. (Board of Supervisors of Los Angeles County v. Simpson (1951) 36 Cal.2d 671; Gov. Code, §§ 26500-26502.) The “adequate remedy” must be speedy and capable of directly affording the relief sought; if it cannot result in performance of the specific act sought by mandamus, it is not equally convenient, beneficial and effective, it will not supersede the mandamus remedy. (Ross v. Board of Education of the City and County of San Francisco (1912) 18 Cal.App. 222, 225.)
Conspiracy. The Schwobs assert that the petition states facts sufficient to constitute a cause of action for conspiracy. They contend the elements are (1) formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct), citing AREI II Cases (2013) 216 Cal.App.4th 1004, 1021. A Plaintiff must establish that the conspiring Defendants knew of the wrongful plan and expressly or implied agreed to achieve it. Because of the secretive nature of conspiracy, their existence can be inferentially and circumstantially derived from the character of the acts done, the relations of the parties, and other facts and circumstances suggestive of concerted action.
They point to their allegations in ¶¶ 34 [that the Crosbys continued to play pickleball by putting tape down to act as boundaries in lieu of painted lines, and putting in place a professional grade moveable pickleball net], 49 [that beginning in February 2022, County acted in cooperation and conspiracy with the Crosbys in allowing for an illegal pickleball Court to exist], and 50 [in allowing the illegal and unpermitted Court to exist, County “advised, consented, looked the other way, overlooked violations, and generally assisted” the Crosbys to have an unpermitted and illegal pickleball Court], and conclude that accepting the facts pleaded as true, and drawing all reasonably inferences therefrom, the formation of a conspiracy is sufficiently shown, based upon the nature of the acts, the relations of the parties, the interests of the conspirators, and other factors, citing 117 Sales Corp. v. Olsen (1978) 80 Cal.App.3d 645, 649.
Declaratory relief. The Schwobs assert the petition states facts sufficient to constitute a cause of action for declaratory relief. They contend County wants it both ways, first that the mandamus action is subject to demurrer, and then that declaratory relief is subject to demurrer because it is duplicative of the mandamus claim. Whether it is duplicative depends on what is shown at trial. The allegations must be liberally construed, with a view to substantial justice between the parties. (Code Civ. Proc., § 452.) A general demurrer to a declaratory relief cause of action must be overruled as long as an actual controversy is alleged; the pleader need not establish it is entitled to a favorable judgment. (New Livable California v. Association of Bay Area Governments (2000) 82 Cal.App.4th 592, 606.
Reply
County asserts that while the Schwobs contend the patio is still an unpermitted and illegal sports Court, they fail to allege facts that would show that County’s interpretation and application of its own code is clearly erroneous or unauthorized, or that they have authority to seek an order directing County to exercise its discretionary powers in a particular manner. They have obfuscated the issues by making new factual allegations in their opposition, citing numerous provisions in the County’s land use code that were not relied on in the Petition, were not provided with their opposition, and of which they have not requested judicial notice. The new allegations and new code provisions do not remedy the deficiencies, and at most would entitle the Schwobs to file an amended pleading.
Mandamus (1) Administrative mandamus is inapplicable because no hearing was required by law. The petition includes no allegations that a hearing was required by law. Consequently, Section 1094.5 does not apply. While the Schwobs’ opposition contends a hearing was required because the Court and fence required permits, citing Section 35.423.030, that section was not alleged in the petition, nor was judicial notice of it requested. Further, there are no allegations of what type of permit was required, nor is any provision cited that requires a hearing for that type of permit. Not all permits require hearings.
Petitioners argue County abused its discretion by failing to enforce its code, but County did enforce its code, sending two Notices of Violation to the Crosbys, who abated the violations by converting the sports Court into a patio and by lowering the fence height, which is exempt from permit requirements. The second NOV explained that removal of the net and sports Court lines converted the Court into a patio, which is not a structure under the code, and therefore does not impact the 30% encroachment into the setback.
Petitioners also argue the County abused its discretion in determining the Schwobs converted the sports Court into a patio, but the MLUDC gives the County, not the neighbors, the authority to interpret the code and determine what measures are necessary to comply with it. Schwobs have failed to show that County’s interpretation of the code to allow unobtrusive recreational features on patios is “clearly erroneous or unauthorized.” They attempt to make new factual allegations not contained in the petition, by contending it is a single, continuous poured, smooth surface, of a size appropriate for a pickleball Court, and was built before and from a different material than the Crosby’s patio. They were not alleged and are irrelevant on demurrer. Even if true, they would not require County to treat the hardscape as a sports Court rather than a patio.
Petitioners further argue County abused its discretion because the Court and fence each had a distinct permitting requirement that County ignored, citing 35.20.040.C and 35.30.070.C. Neither of those provisions were cited in the petition, nor was judicial notice requested of them, nor do they even exist. Even if a code provision requires a permit for a sports Court, Petitioners have not cited any provision requiring one for a patio.
With respect to the fence, the first NOV stated that the 10’ fence exceeded the maximum exempt fence height of 6 feet and enclosed a table showing that a rear setback fence 6 feet or less was exempt from a planning permit. County advised the Crosbys could either remove the fence, lower its height, or obtain a permit, and they to lower the fence to 6 feet. While the Schwobs argue it was lowered to an “illegal height of six feet,” they offered no explanation for why it is illegal.
County concludes it should not be compelled to require abatement that it does not believe is necessary, “at the whim or caprice of every taxpayer who disagrees” with it. Local code enforcement inherently involves the exercise of discretion, and mandamus does not lie to compel a public agency to exercise discretionary powers in a particular manner.
(3) The Schwobs have an adequate available remedy, in their private nuisance claim against the Crosbys, to resolve the dispute among neighbors over noise. While they contend it is not adequate, they do not explain why a private nuisance claim against the Crosbys is not as convenient, beneficial, and effective as their mandamus claim against the County; that they have already filed the claim suggests it is not less convenient. They fail to articulate any remedy they could not obtain from the Crosbys. The only way to obtain the remedy they seek—the cessation of all pickleball noise—is through an injunction. Petitioners have cited no provision in the MLUDC that would authorize County to prohibit use of the patio for any personal recreational purpose, and Court cannot require County to force removal of the hardscape. The only relief they could obtain in mandamus would be an order that the County reconsider the facts and exercise its discretion in determining whether a violation exists and, if so, how the property may be brought into compliance. Even a successful mandamus claim would not necessarily eliminate the Crosbys playing of pickleball.
Conspiracy. Petitioners fail to address that there is no such separate cause of action for conspiracy. Even if there were, they have alleged insufficient conclusory allegations. County’s alleged knowledge that the Crosbys were playing pickleball doesn’t support a conspiracy claim because the MLUDC does not prohibit residents from engaging in sports or games in their backyards. No MLUDC provision is cited that prohibits recreational activities on patios or other hard surfaces. The conclusory allegations are not admitted on demurrer, including that the hardscape is “illegal.” There has been no showing that County had actual knowledge of an unlawful purpose by the Crosbys, and that County concurred in the unlawful purpose. While they suggest that the change in abatement options from the first NOV to the second prove conspiracy, the options were not exhaustive, and the change reflected that Crosbys had abated the first violation by converting the hardscape into a patio, which made conversion an obvious option for the second NOV.
Declaratory relief. Declaratory relief is not appropriate to challenge an agency’s adjudicatory application of an ordinance to s specific parcel of land. Further, it is superfluous to and derivative of the mandamus claim. Petitioners cited cases in their opposition but failed to apply them to this case. Their conclusory statement that they have alleged sufficient facts is insufficient to overcome the demurrer.
ANALYSIS
The Court will sustain County’s demurrers to the cause of action for conspiracy and declaratory relief, with leave to amend. While the Court does not find the allegations of the petition sufficient to state a claim for administrative mandamus, or traditional mandamus based upon a ministerial duty of the County, it does find the petition sufficient to state a claim for traditional mandamus review of County’s discretionary determinations. Consequently, the Court will overrule the demurrer to the petition for writ of mandamus.
1. Judicial Notice
In support of its demurrer, County seeks judicial notice of Santa Barbara County Code, Chapter 24A (Administrative Fines), and excerpts from the Santa Barbara County Code, Montecito Land Use and Development Code, as legislative enactments by the County of Santa Barbara. (Evid. Code, § 452, subd. (b).) The request attaches copies of the provisions for which judicial notice is requested, as required by California Rules of Court, Rule 3.1306(c). Judicial notice of these local enactments is legally proper, and the Court will take judicial notice of the provisions.
2. Demurrer standards
The Court’s task in ruling on a demurrer is to determine whether the complaint states a cause of action. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer admits the truth of all material facts properly pleaded (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967), no matter how unlikely or improbable they may be (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604), or how unlikely it will be that Plaintiff will be able to prove the claim (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214). The Court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.) The assumption of truth does not apply, however, to contentions, deductions, or conclusions of law or fact. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters, and therefore lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.)
3. Mandamus cause of action.
A. Requirements and standards for a mandamus claim
i. Administrative mandamus
A petition for administrative mandamus under Code of Civil Procedure section 1094.5 is appropriate when the party seeks review of a determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance with the law—which is generally referred to as an “adjudicatory” or “quasi-judicial” decision. (Western States Petroleum Association v. Superior Court (1995) 9 Cal.4th 559, 567.) An evidentiary hearing is required “by law” within the meaning of Section 1994.5(a), if it is required by a statute, a regulation, or constitutional due process. (Kirkpatrick v. City of Oceanside (1991) 232 Cal.App.3d 267, 279.)
Section 1094.5 is properly directed to formal adjudicatory proceedings, and not to informal administrative actions. (See Wasko v. California Department of Corrections (1989) 211 Cal.App.3d 996, 1001.) The distinction between adjudicatory proceedings and other types of decision-making (e.g. quasi-legislative or ministerial) turns on the function being performed by the agency, rather than on the procedure by which the decision was reached. (See 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 275.)
It is sometimes not entirely clear whether circumstances giving rise to review pursuant to Section 1094.5 exist. There exist some statutes, such as Water Code section 1126(c), which require that an adjudicatory decision be reviewed under Section 1094.5 even where no evidentiary hearing is required. There also exist some statutes, such as Business & Professions Code section 19870(f), which provide that Section 1094.5 does not apply to review of a decision after an agency hearing that is required by statute. Further, some statutes have been construed by case law to imply a right to an evidentiary adjudicatory hearing, and thus to Section 1094.5 review. Additionally, some cases imply a right to an evidentiary adjudicatory hearing where the statute calls for an administrative appeal. (See, e.g., California Practice Guide—Administrative Law (The Rutter Group 2023) Chapter 13, §§ 13:200, et seq.).
Where Section 1094.5 applies, the trial Court reviews the agency’s decision for abuse of discretion, which is established if the Respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).) Factual disputes are reviewed in the light most favorable to the judgment, on a substantial evidence review. (Golden Gate Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249, 256-257.)
ii. Traditional mandamus
A traditional writ of mandate will issue to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station (Code Civ. Proc., § 1085), where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. (Id., § 1086.) Such writ will issue against a county, city or other public body or against a public officer. (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 653.)
Traditional mandamus under Section 1085 is the proper form of action to challenge the reviewable ministerial or quasi-legislative acts of a public agency. (California Water Impact Network v. Newhall County Water District (2008) 161 Cal.App.4th 1464, 1483.) A trial Court must determine whether the agency had a ministerial duty capable of direct enforcement or a quasi-legislative duty entitled to a considerable degree of deference. (Weinstein v. County of Los Angeles (2015) 237 Cal.App.4th 944, 965, quoting County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 653.)
A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists. (Kavanaugh v. West Sonoma County Union High School District (2003) 29 Cal.4th 911, 916.) Where a statute or ordinance clearly defines the specific duties or course of conduct that a governing body must take, that course of conduct becomes mandatory and eliminates any element of discretion. (Bullis Charter School v. Los Altos School District (2011) 200 Cal.App.4th 1022, 1035.) A public entity has a ministerial duty to comply with its own rules and regulations where they are valid and unambiguous. (Gregory v. State Board of Control (1999) 73 Cal.App.4th 584, 595.)
Further, while traditional mandamus will not lie to compel the exercise of discretion in a particular manner, it is a proper remedy to challenge discretionary agency action as an abuse of the agency’s discretion. (CV Amalgamated, LLC v. City of Chula Vista (2022) 82 Cal.App.5th 265, 279.) When a Court reviews a public entity’s decision for an abuse of discretion, the Court may not substitute its judgment for that of the public entity, and if reasonable minds may disagree as to the wisdom of the public entity’s discretionary determination, that decision must be upheld. Thus, the judicial inquiry addresses whether the public entity’s action was arbitrary, capricious or entirely without evidentiary support, and whether it failed to conform to procedures required by law. (California Public Records Research, Inc. v. County of Stanislaus (2016) 246 Cal.App.4th 1432, 1443.) Petitioner must show the agency or official acted arbitrarily, beyond the bounds of reason, or in derogation of applicable legal standards. (Ochoa v. Anaheim City School District (2017) 11 Cal.App.5th 209, 223, fn. 3.)
iii. Standards when reviewing a question of discretion.
A trial Court’s review of an agency’s discretionary actions in the context of a petition for writ of traditional mandate is multi-faceted and can be quite confusing, including at times to this Court. While a more robust recitation and understanding of the law surrounding such review is understandably required for purposes of performing the review, in this case a basic understanding of the process is required in order for this Court to ascertain whether some of the issues raised by County are in fact amenable to resolution on demurrer.
As noted, both administrative mandamus and traditional mandamus can be used, when appropriate, to review an agency’s exercise of discretion. While the “abuse of discretion” standard—as articulated above with respect to both administrative mandamus and traditional mandamus—applies overall, the trial Court must use appropriate standards in reviewing the agency’s resolution of questions of fact, of questions of law, and the application of law to the facts (whether undisputed, or as determined by the agency). (See, generally, California Practice Guide—Administrative Law (The Rutter Group 2023) Chapter 17 [“Rutter”].)
(a) Review of agency’s resolution of questions of law.
The first step in reviewing an agency’s discretionary action is to resolve issues of law. (Rutter, Chapter 17, § 17:635.) When a statute (or ordinance) delegates discretionary authority to an agency, Courts review whether the agency’s choice is legally permissible as a question of law. If the choice is legally permissible, Courts then proceed to determine whether the agency’s discretionary choice is an abuse of discretion. (Rutter, § 17:636; see 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 271.) Since discretionary decisions often involve a balancing of factors, whether the agency took account of all relevant factors or took account of irrelevant factors is a question of law on judicial review. (See Rutter, § 17:637, citing Morrison v. State Board of Education (1969) 1 Cal.3d 214, 220-230; Association of Irritated Residents v. San Joaquin Valley Unified Air Pollution Control District (2008) 168 Cal.App.4th 535, 542-549.)
Questions of law are ordinarily determined by a reviewing Court under an independent judgment test, under which the Court can substitute its judgment on a question of law for that of an agency even though the agency’s interpretation is reasonable. (Rutter, §§ 17:10, 17:20, 17:369.) However, in the course of exercising independent judgment over questions of legal interpretation, the Court gives “variable deference” to the agency’s interpretation. (Yamaha Corporation of America v. State Board of Equalization (1998) 19 Cal.4th 1, 7-8 [“Yamaha”].) Yamaha requires the reviewing Court to take account of various factors in determining how much weight to give to an agency’s legal interpretation of a statute it administers. (Yamaha, supra, 19 Cal.4th at ¶. 12.)
If the reviewing Court determines that the language being interpreted is unambiguous, it gives no deference to the agency’s contrary interpretation, and should not make use of any other extrinsic aid to interpretation. Rather, in the process of judicial interpretation of a statute, deference to the agency’s opinion comes into play only if the language is ambiguous. (Bonnell v. Medical Board of California (2003) 31 Cal.4th 1255, 1264-1265.)
Further, application of the variable deference factors is fundamentally situational, and the degree of deference owed to the agency’s interpretation depends on the facts and circumstances of the particular case. (Yamaha, supra, at p. 12.) The factors fall into two broad groupings: (1) those concerned with whether the agency has a “comparative interpretive advantage” over Courts, and (2) those indicating that the interpretation in question is probably correct. (Ibid.)
(b) Review of the agency’s factual determinations.
Once the reviewing Court has resolved issues of law, it then proceeds to review the factual determinations underlying the adjudicatory decision. If review is conducted under administrative mandamus, the substantial evidence test applies, unless the Petitioner is asserting invasion of a fundamental vested right, in which case the independent judgment test applies. (See, e.g., Bixby v. Pierno (1971) 4 Cal.3d 130, 143-144.) Substantial evidence is that evidence which is of ponderable legal significance, which is reasonable in nature, credible, and of solid value. (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 249.)
Traditional mandamus review applies to many local government level adjudicatory decisions because of the lack of requirement for an evidentiary hearing. (Rutter, at § 17:651.) The appropriate degree of judicial scrutiny in any particular traditional mandamus action is not susceptible of precise formulation but lies somewhere along a continuum with nonreviewability at one end and independent judgment at the other. (Western States Petroleum Association v. Superior Court (1995) 9 Cal.4th 559, 575-576.) Quasi-legislative administrative decisions are properly placed at that point of the continuum at which judicial review is more deferential; ministerial and informal actions do not merit such deference, and therefore lie toward the opposite end of the continuum. (Id., at p. 576.)
iv. Adequate remedy at law.
Pursuant to Code of Civil Procedure section 1086, a writ of mandate must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law, upon the verified petition of a party beneficially interested. Whether there is an adequate remedy at law, within the meaning of the statute, is usually a question of fact that requires an evaluation of the circumstances of each particular case. (Villery v. Department of Corrections & Rehabilitation (2016) 246 Cal.App.4th 407, 414.) Whether a potential alternative remedy is available in the ordinary course of law, as would preclude a writ of mandate, involves an examination of (1) the legal foundation for that remedy, and (2) how the remedy relates to the relief sought by the Plaintiff. (Ibid.)
B. Application
In this case, the Planning Department was provided with the authority to interpret the provisions of the County Code, including the MLUDC (see, e.g., MLUDC § 35.402.020), as well as the authority to investigate all reported or apparent violations of any provision of the MLUDC, determine whether a violation exists or is impending, and take whatever measures the department deems necessary or expedient to enforce and secure compliance with the MLUDC. (See MLUDC, § 35.498.020.) Further, in the event a violation was determined not to have been abated, the director is authorized to request the District Attorney or County Counsel to apply to the Superior Court for an order authorizing the department to undertake any actions necessary to abate the violation, and to require the violator to pay the costs of that undertaking. (MLUDC, § 35.498.050.A.3.) At the conclusion of such an enforcement action, the property owner required to pay its costs has the right to a hearing on their objections to the proposed costs. (MLUDC, § 35.498.070.E.)
Additionally, violations of Chapter 35 may warrant the imposition of fines upon the property owner, in appropriate circumstances. (§ 24A-2(a) and (b).) Any such fine can be reduced or eliminated if the director determines correction of the violation is not feasible and the violation does not present a threat to public health or safety. (§ 24A-6.(a).(6).) Any person upon whom an administrative fine is imposed may appeal that fine. (§ 24A-7.)
i. Administrative mandamus.
The Court will sustain the demurrer, to the extent that it purports to allege a claim for administrative mandamus under Code of Civil Procedure section 1094.5. As noted above, administrative mandamus applies only to decisions made by a public agency as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal or board. (Code Civ. Proc., § 1094.5, subd. (a).) As noted above, it is not entirely clear from a statutory scheme whether these circumstances exist, and certain exceptions to the hearing requirement have evolved.
The MLUDC, on its face, does not require the County to conduct a hearing prior to determining that a violation has been abated. The only “hearing” entitlement brought to the Court’s attention is that by a property owner compelled to pay costs of an enforcement action against them, who properly and timely objects to the proposed costs. Further, the petition itself does not contain any allegations from which the Court could determine that review of this ordinary zoning violation challenge would fall within any of the exceptions to the hearing requirement, or that circumstances exist that would make its review pursuant to Section 1094.5 otherwise appropriate in any way. Consequently, the petition fails to allege facts and circumstances sufficient to permit administrative mandamus review pursuant to Section 1094.5.
ii. Traditional mandamus.
As noted above, traditional mandamus is available under two circumstances. First, it may be employed to compel the performance of a ministerial act, i.e., an act that a public officer is required to perform in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion concerning the act’s propriety or impropriety, when a given state of facts exists. (See Kavanaugh v. West Sonoma County Union High School District (2003) 29 Cal.4th 911, 916.) Second, while traditional mandamus will not lie to compel the exercise of discretion in a particular manner, it is a proper remedy to challenge agency discretion as an abuse of discretion. (CV Amalgamated, LLC v. City of Chula Vista (2022) 82 Cal.App.5th 265, 279.)
(a) No ministerial duty appears to exist.
In Blankenship v. Michalski (1957) 155 Cal.App.2d 672, cited and relied upon by County, the Court discussed whether the duty imposed on a city attorney by a zoning ordinance to abate a zoning violation was discretionary or mandatory. The Court stated that it may be that where the claimed violation is clear and obvious, the determination by the city attorney that no violation had occurred, and his refusal to bring an abatement proceeding, would be a clear abuse of discretion that mandamus would issue to compel the city attorney to commence a proceeding to enforce the ordinance. In that case, however, the Court found it to be reasonably debatable whether a violation had occurred. Under those circumstances, the Court found that the determination that no violation had occurred was well within the city attorney’s discretion, and he could not be compelled by mandamus to commence an enforcement action.
Given the discretion provided by the MLUDC to the Planning Department to investigate claimed violations, determine if reported conduct in fact constituted a violation, and to determine whether subsequent conduct had abated the violation, it is clear to the Court that County’s decision not to bring an enforcement action to compel the Crosbys to remove the sports Court was a decision within the department’s discretion. There are no allegations in the petition which would alter that conclusion.
Consequently, Petitioners have not established that County had any ministerial duty to enforce the MLUDC through an enforcement action requiring the removal of the alleged sports Court, and in fact had the discretion to determine whether a violation existed, what measures were necessary or expedient to enforce compliance with the MLUDC, and to determine if or when measures taken by property owners in fact brought violations back into compliance with the MLUDC.
As a result, the petition does not state a cause of action for traditional mandamus, except to the extent it might be sufficient to challenge the County’s discretionary actions as an abuse of its discretion.
(b) Traditional mandamus review of County’s discretionary actions.
In its demurrer, County contends that the petition fails to state facts sufficient to show that it abused its discretion when it found that the Crosbys had abated the violations and had effectively converted the “sports Court” (which was subject to the 30% rear setback restriction because it is considered to be a “structure” by the MLUDC) to a “patio” (which is not considered a structure and is therefore not subject to the 30% rear setback restriction) by lowering the height of the fence and removing the permanent sports net and painted pickleball lines. In making the argument, County sets forth many of the standards articulated by this Court above, and contends that the petition and the documents attached to it “plainly show the County considered all the facts and demonstrated a rational reason for its determination that the Crosbys abated the setback violation.” [Demurrer @ 14:17-19] They assert that, to the extent there is any ambiguity as to what the MLUDC requires, County’s own interpretation is entitled to great weight, contending that it has “expertise and technical knowledge” of the MLUDC which is “technical, obscure, complex, open-ended, [and] entwined with issues of fact, policy, and discretion,” and as author of the MLUDC is “intimately familiar” with it, and “sensitive to the practical implications of one interpretation over another,” citing (and quoting those phrases from) Yamaha Corp. of America v. State Board of Equalization (1998) 19 Cal.4th 1, 11-12.) County asserts that only if an agency’s interpretation of its own ordinance is “clearly erroneous or unauthorized” should a Court decline to defer to it. [Demurrer @ 15:12—17:26]
The documents attached to the petition include a subdivision map showing the relative placement of the two properties, the Government Claim presented by the Schwobs, and the February 11, 2022 and September 9, 2022 Notices of Violation issued to the Crosbys by the County of Santa Barbara Planning and Development Department.
As noted above, the Yamaha Court notes that whether an agency has developed expertise that assists it in interpreting the language of a particular statute or regulation (or, as her, ordinance), depends upon the context. If it involves language in a highly technical statute that the agency specializes in administering, the agency can claim a significant degree of expertise to which the Court should defer, but if the statute is nontechnical or involves the sort of language that a Court routinely interprets, the agency can claim little expertise and is not entitled to judicial deference. Additionally, as also noted above, in reviewing an agency’s discretionary decisions, the Court must ensure that the agency adequately considered all relevant facts, and has demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute. The Court must satisfy itself that the decision was supported by the evidence, although what constitutes reasonable evidentiary support may vary depending on the nature of the action, and a proceeding which has determined individual rights in a factual context will warrant more exacting judicial review of the evidence.
Given the variable, contextual, and fact-based nature of these determinations, they are not amenable to determination on demurrer. Contrary to County’s contention, the Court does not find that the petition and its exhibits “plainly show the County considered all the facts and demonstrated a rational reason for its determination that the Crosbys abated the setback violation.” Rather, these will be issues for determination by the Court upon consideration of the record before it, when resolving the petition for writ of mandamus on its merits. Consequently, the Court will overrule the demurrer to the petition for writ of mandamus, to the extent it states a claim based upon traditional mandamus review of the County’s discretionary decision in finding that the MLUDC violations by the Crosby’s had been abated.
ii. Impact of County’s assertion that Petitioners have an adequate remedy at law, because of their pending action against the Crosbys for private nuisance.
On its demurrer, County simply concludes that the existence of the Schwobs’ cause of action for private nuisance establishes that the Schwobs have an adequate remedy at law, requiring that the demurrer to their writ of mandate claim be sustained.
As this Court noted above, whether there is an adequate remedy at law, within the meaning of the Section 1086, is usually a question of fact that requires an evaluation of the circumstances of each particular case. (Villery v. Department of Corrections & Rehabilitation (2016) 246 Cal.App.4th 407, 414.) Whether a potential alternative remedy is available in the ordinary course of law, as would preclude a writ of mandate, involves an examination of (1) the legal foundation for that remedy, and (2) how the remedy relates to the relief sought by the Plaintiff. (Ibid.)
Based upon this standard, the Court cannot find—on demurrer—that the mere existence of the claim for private nuisance establishes that the Schwobs have an adequate remedy, as a matter of law, and that the petition for writ of mandamus is therefore barred. Neither of the cases cited by County in support of its demurrer made on this basis were pleading cases; both involved appeals from a trial Court issuance of a writ of mandate.
While County is free to defend against the writ petition by asserting a properly supported contention that no writ may issue because the Schwobs have an adequate remedy at law, the Court will overrule the demurrer to the extent it is made on this ground.
4. Conspiracy
Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. (Applied Equipment Corp. v. Litton Saudi Arabia, Ltd. (1994) 7 Cal.4th 503, 510-511.) The doctrine involves concerted action in pursuit of a common plan or design to commit a tortious act, in which the conspirators actively part, or further the conspiracy by cooperation or request, by lending aid or encouragement to the wrongdoers, or by ratifying and adopting those acts done for his or her benefit. (See Cully v. Bianca (1986) 186 Cal.App.3d 1172, 1176.) As held in Peskin v. Squires (1957) 156 Cal.App.2d 240, 247, each party to a conspiracy is liable for all acts done in pursuance thereof, and his lack of knowledge of details, or an absence of personal commission of overt acts, is immaterial.
In stating a cause of action based upon a conspiracy theory, the Plaintiff must allege the formation and operation of the conspiracy, the wrongful act or acts done pursuant to it, and the damage resulting from it. (State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 419.) In making the allegations, legal conclusions, inferences, generalities, presumptions, and conclusions are insufficient. (Ibid.) However, although the pleaded facts must show that something was done which, without the conspiracy, would give rise to a cause of action (i.e., the underlying tort), the formation and operation of a conspiracy may be alleged in general terms. The general allegation that Defendants “did agree together”, or “conspired together,” are sufficient to allege a conspiracy. (See Farr v. Bramblett (1955) 132 Cal.App.2d 36, 47; Greenwood v. Mooradian (1955) 137 Cal.App.2d 532, 535-537.) The acts done pursuant to the conspiracy and inflicting the wrong should be alleged; the specific acts constituting the conspiracy need not be alleged. (Greenwood v. Mooradian, supra.) Further, the existence of the conspiracy may be inferred from the nature of the acts done, the relations of the parties, the interests of the alleged conspirators, and other circumstances. (Allen v. Powell (1967) 248 Cal.App.2d 501, 508.)
In this case, the Schwobs have attempted to state a separate cause of action for conspiracy against the County and the Crosbys. As the California Supreme Court held almost three decades ago, there is no such cause of action. Rather, conspiracy is a legal theory to impose liability for an underlying tort. Because there is no such thing as a separate cause of action for conspiracy, and because the Schwobs’ pleaded conspiracy cause of action does not identify any underlying tort for which conspiracy liability by County and the Crosbys could arise, the petition/complaint fails to state a cause of action. Consequently, the Court will sustain County’s demurrer to the separately alleged conspiracy cause of action.
5. Declaratory relief
“Any person interested under a written instrument …, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, … may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior Court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.” (Code Civ. Proc., § 1060.) “A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties … and requests that these rights and duties be adjudged by the Court.” (Maguire v. Hibernia Savings & Loan Society (1944) 23 Cal.2d 719, 728.) Declaratory relief is appropriate to obtain judicial clarification of the parties’ rights and obligations under applicable law. (Californians for Native Salmon and Steelhead Association v. Department of Forestry (1990) 221 Cal.App.3d 1419, 1427.)
A declaratory relief action is an appropriate method for obtaining a declaration that a statute or regulation is facially unconstitutional. (Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 154-155.) However, where the challenge is to the regulation’s application to the lands of the complaining party, the proper and sole remedy is administrative mandamus. (Id. at p. 155.) Indeed, generally speaking, a specific decision or order of an administrative agency can only be reviewed by a petition for administrative mandamus. (State of California v. Superior Court (1974) 12 Cal.3d 237, 249 [claim seeking a declaration that the Plaintiff was entitled to a permit not a proper subject for declaratory relief].)
However, where the Plaintiff does not challenge a specific order or decision, or even a series thereof, but an overarching, quasi-legislative policy set by an administrative agency, the policy is subject to review in an action for declaratory relief. (Bess v. Park (1955) 132 Cal.App.2d 49, 52-54.) Declaratory relief is available to any interested person to review any rule, regulation, order or standard of general application adopted by any state agency to implement, interpret or make specific, any law enforced or administered by it. (Id. at p. 53.) As a result, the contention that declaratory relief does not lie to review an administrative decision is not dispositive of the issue of the validity of the declaratory relief claim. (See Californians for Native Salmon and Steelhead Association v. Department of Forestry, supra, 221 Cal.App.3d at p. 1428-1429.) Indeed, declaratory relief directed to policies of administrative agencies is not an unwarranted control of discretionary, specific agency decisions. (Id. at p. 1429.)
In this case, the Schwobs seek a declaration that the Crosbys are in violation of MLUDC §§ 35.400.040.A, 35.420.040.A, and 35.442.020.4.a.(1).(c) with respect to the “sports Court,” and §§ 35.400.040.A, 35.430.070.C, and 35.430.070 Table 3-2 with respect to the fencing. The manner in which their declaratory relief cause of action is drafted, and the specific declaration which they seek, make clear that their challenge is to the manner in which these provisions were applied by County in finding that the actions taken by the Crosbys had abated the violations. Specifically, that County found the violations were abated by (a) the conversion of the “sports Court” (which is defined as a “structure” under the MLUDC, which must not exceed the 30% cumulative square foot maximum of structures within a rear setback) into a “patio” (which does not constitute a structure under the MLUDC, and therefore does not implicate the 30% rear setback limitation), by removing the permanent hallmarks of a recreational “structure,” and (b) by lowering the 10’ fence (which required a permit) to 6 feet, which County found did not require a permit.
Because the Schwobs’ declaratory relief cause of action challenges the manner in which County applied the regulations to the Crosbys’ property, which is not a proper subject for declaratory relief under Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 154-155, the Court will sustain County’s demurrer to the cause of action.
6. Leave to amend.
The demurrers to the conspiracy and declaratory relief causes of action are being sustained, with leave to amend. The Schwobs may file any amended pleading on or before October 11, 2023, or such other date as this Court might specify at the hearing on the demurrer.
While it is unclear whether the Schwobs could allege legally viable claims for administrative mandamus or traditional mandamus arising from a ministerial duty, the Court’s grant of leave to amend will also include leave to amend the cause of action for mandamus, to allow them an attempt to do so.