Tentative Ruling: Stephen Marcussen et al City of Carpinteria
Case Number
25CV05670
Case Type
Hearing Date / Time
Fri, 03/27/2026 - 10:00
Nature of Proceedings
CMC; Demurrer
Tentative Ruling
(1) For the reasons stated herein, the demurrer of respondent the City of Carpinteria to the verified petition for writ of mandate and complaint of petitioners is overruled.
(2) For the reasons stated herein, the motion of respondent the City of Carpinteria to strike portions of the verified petition for writ of mandate and complaint of petitioners is denied.
(2) Respondent shall, on or before April 10, 2026, file and serve its answer to petitioners’ verified petition for writ of mandate and complaint.
Background:
As alleged in the verified petition for writ of mandate and complaint (collectively, the Petition) of petitioners and plaintiffs Stephen Marcussen and Mary Eileen Marcussen (collectively, Petitioners):
Petitioners own and reside in a single-family home located at 4977 3rd Street (the Property) in the City of Carpinteria (the City). (Petition, ¶¶ 3, 8 & 21.) The Property is located in the City’s Planned Residential Development or “PRD” District, approximately 0.20 miles away from Alewright LLC dba Island Brewing Company (Island Brewing), and less than 600 feet away from Island Brewing’s outdoor stage. (Petition, ¶¶ 8, 10 & 21.)
Title 14 of the Carpinteria Municipal Code (the Municipal Code) governs the development and zoning of the Island Brewing property and has specific limitations as to the level of noise allowed based on the categorization of the property. (Petition, ¶ 14.) Island Brewing’s patio is zoned as a Commercial Planned Development. (Petition, ¶¶ 14.) For commercial uses in the Commercial Planned Development district, Municipal Code section 14.20.110 provides: “ ‘The noise level emanating from any commercial use or operation shall not exceed five (5) decibels above the ambient level of the area.’ [Citation.]” (Petition, ¶¶ 1(a) & 14, boldface and underscoring omitted.)
The Municipal Code also provides that conditional use permits are used to “ ‘provide for uses that are essential or desirable but cannot be readily classified as principal permitted uses in individual districts by reason of their special character, uniqueness of size or scope, or possible effect on surrounding uses or the general community. The intent of this chapter is to provide the mechanism for requiring specific consideration of these uses.’ [Citation.]” (Petition, ¶ 15, boldface and underscoring omitted.)
On February 3, 2014, the City’s Planning Commission approved Island Brewing’s conditional use permit (the CUP) and coastal development permit (the CDP) (collectively, the CUP/CDP) to allow for expansion and the continued operation of the existing brewpub, and live music. (Petition, ¶¶ 2, 16.) The CUP/CDP issued to Island Brewing was granted by the Planning Commission subject to a condition which expressly requires that all live music entertainment be held inside the brewpub and observe an evening curfew of 10:00 p.m. or last call, whichever occurs earlier. (Petition, ¶¶ 2, 4, 16 & 20.) The approval of the CUP/CDP was based on a specific finding by the Planning Commission that restricting live music to inside the brewpub was necessary to maintain consistency with “General Plan Noise Element Objective N-5: minimize the effects of nuisance noise effects on sensitive land uses”. (Petition, ¶¶ 17 & 20.)
On June 10, 2024, the City Council passed City of Carpinteria Ordinance No. 781 (Ordinance 781), codified as Municipal Code section 5.40.010. (Petition, ¶ 18.) Though Ordinance 781 amended the Municipal Code’s definition of “place of entertainment”, it did not affect allowable noise levels which remain governed by Municipal Code section 14.20.110. (Ibid.) Municipal Code section 14.62.040 also provides that the conditions and limitations in a conditional use permit “ ‘take precedence over those required in the specific zone districts.’ [Citation.]” (Petition, ¶ 19.)
For the last several years, Petitioners have been subjected to excessive, incessant, pervasive, and sustained noise caused by live music performed on the outside patio at Island Brewing on Friday and Saturday evenings and Sunday afternoons. (Petition, ¶¶ 3 & 22.) The noise caused by the live music has impacted Petitioners’ quality of life and ability to enjoy their home, and disrupted basic activities such as sleeping, working, entertaining guests, watching television, and reading. (Ibid.)
Between March 2024 and January 2025, seventy-eight noise complaints related to live music hosted at Island Brewing were filed with the City. (Petition, ¶ 25.) In the summer and fall of 2024, the City measured sound levels emanating from Island Brewing and published its results in a January 27, 2025, Live Entertainment Licensing Program Update (the Report), which showed that the noise level exceeds five decibels above the ambient level of the area. (Petition, ¶¶ 26-27.) In addition, the City’s July 2025 Code Compliance Report revealed 29 noise complaints related to live entertainment at Island Brewing. (Petition, ¶ 29.) Independent sound measurements collected on behalf of Petitioners also show that Island Brewing’s sound levels exceed the Municipal Code noise limits, and are higher than those shown in the Report. (Petition, ¶ 28.)
Petitioners have made multiple efforts to seek the City’s compliance with its regulations, including by meeting with the Mayor of the City and other City representatives regarding the excessive noise created by Island Brewing’s outdoor patio concerts; by submitting noise complaints; and by making statements at City meetings. (Petition, ¶¶ 6 & 23.) Petitioners have also contacted Island Brewing directly. (Petition, ¶ 23.)
Island Brewing is in violation of the Municipal Code and the conditions of operation of the CUP/CDP, which expressly and respectively prohibit noise exceeding five decibels above the ambient level and require that all live music be held inside the brewpub. (Petition, ¶¶ 4, 33 & 35.) Though the City issued public nuisance citations to Island Brewing, who has received multiple warning from the City and the Sheriff of Santa Barbara County, and despite the City’s own evidence and findings, the City has failed, to enforce the Municipal Code or stop the excessive noise, and has continued to allow Island Brewing to violate its CUP/CDP. (Petition, ¶¶ 5, 23, 30, 33 & 35.)
Though the City contends that Island Brewing’s Live Entertainment License (the License) allows Island Brewing to continue live outdoor music events, the licensing provisions of the Municipal Code were enacted “ ‘solely to raise revenue for municipal purposes and [are] not intended for regulation[].’ ”. (Petition, ¶¶ 5, 24 & 30-31, boldface and underscoring omitted.) The Municipal Code also provides: “ ‘A license granted pursuant to this chapter does not permit any occupation or activity which is not permitted by the ordinance codified in this chapter or this code or any other ordinance, code, regulation or rule or law, whether adopted by this city, the state of California or the federal government.’ [Citation.]” (Petition, ¶¶ 1(b) & 31, boldface and underscoring omitted.) For these reasons, the License does not address, eliminate, or supersede the noise limits contained in the Municipal Code, or eliminate or change the conditions of the CUP/CDP that limit live entertainment to indoors. (Petition, ¶¶ 5, 24 & 31.)
Petitioners filed their Petition against the City and Island Brewing on September 12, 2025, asserting four causes of action: (1) writ of mandate (Code Civ. Proc., § 1085) (against the City); (2) declaratory relief (Code Civ. Proc., § 1060) (against the City and Island Brewing); (3) public nuisance (against Island Brewing); and (4) private nuisance (against Island Brewing).
On November 17, 2025, Island Brewing filed its verified answer to the Petition, responding to its allegations and asserting nineteen affirmative defenses.
Also on November 17, the City filed a demurrer to the first and second causes of action asserted in the Petition. Alternatively, the City requests an order striking certain portions of the Petition on statute of limitations grounds.
Petitioners oppose the demurrer and motion to strike.
Analysis:
(1) Demurrer
The party on whom a petition for writ of mandate has been served may respond by demurrer. (Code Civ. Proc., § 1089, subd. (a); Water Audit California v. Merced Irrigation Dist. (2025) 111 Cal.App.5th 1147, 1180 (Water Audit).) “The rules governing demurrers to civil complaints also apply to mandamus actions.” (Water Audit, supra, 111 Cal.App.5th at p. 1180.)
“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)
In addition, the court accepts the truth of “facts that reasonably can be inferred from those expressly pleaded....” (Regents of University of California v. Superior Court (2013) 220 Cal.App.4th 549, 558.) The court also “adopt[s] a liberal construction of the pleading and draw[s] all reasonable inferences in favor of the asserted claims.” (Candelore v. Tinder, Inc. (2018) 19 Cal.App.5th 1138, 1143 [the court.)
A petition for writ of mandate must “ ‘allege specific facts showing entitlement to relief.... If such facts are not alleged, ... the court is justified in denying the petition out of hand.’ [Citation.]” (Chapman v. Superior Court (2005) 130 Cal.App.4th 261, 271.)
As grounds for its demurrer to the first cause of action for writ of mandate, the City argues that the method and manner by which the City enforces its Municipal Code and permit conditions fall within the City’s discretion and cannot be compelled or controlled by mandate. The City also argues that Petitioners have an adequate remedy at law through their third and fourth causes of action for, respectively, public and private nuisance against Island Brewing, and injunctive relief preventing Island Brewing from hosting live outdoor entertainment or exceeding Municipal Code noise limits. For these reasons, the City contends, the Petition fails to show any entitlement to mandamus relief.
The first cause of action for writ of mandate is brought pursuant to Code of Civil Procedure section 1085, and requests that the court issue a writ compelling the City to (1) enforce noise limits imposed by the Municipal Code in a manner which ensures that Island Brewing’s operations do not exceed five decibels above the ambient noise level, and (2) enforce the CUP/CDP such that live entertainment at Island Brewing occurs indoors. (Pet., ¶¶ 44 & Prayer for Relief, ¶ 1.)
“A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station….” (Code Civ. Proc., § 1085, subd. (a).) “The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested.” (Code Civ. Proc., § 1086.)
“ ‘“What is required to obtain writ relief is a showing by a petitioner of “(1) [a] clear, present and usually ministerial duty on the part of the respondent ... ; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty.” ’ [Citation.]” (CV Amalgamated LLC v. City of Chula Vista (2022) 82 Cal.App.5th 265, 278 (CV Amalgamated).) “A petition for writ of mandate under Code of Civil Procedure section 1085 must plead facts showing that a public body or official has a clear legal and usually ministerial duty and that the petitioner has a beneficial interest in or right to the performance of that duty.” (Building Industry Assn. v. Marin Mun. Water Dist. (1991) 235 Cal.App.3d 1641, 1645 (Building Industry).)
The demurrer of the City advances no factual or legal argument showing why the Petition fails to plead facts sufficient to show that Petitioners have a beneficial interest in the enforcement of Municipal Code provisions at issue, or the CUP/CDP. (See Mission Hospital Regional Medical Center v. Shewry (2008) 168 Cal.App.4th 460, 479–480 general discussion of “broad” beneficial interest standard]; Pich v. Lightbourne (2013) 221 Cal.App.4th 480, 491 [“[a] citizen’s interest in having laws executed and public duties enforced may be sufficient to meet the beneficial interest requirement[]”].) For these reasons, it appears to the court that the City does not dispute whether the Petition pleads facts showing a beneficial interest in the performance of any alleged duties.
As to whether the Petition pleads facts sufficient to show that the City has a clear ministerial duty, “[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.” (Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 501 (Rodriguez).) “[M]inisterial decisions are essentially automatic based on whether certain fixed standards and objective measurements have been met.” (Calvert v. County of Yuba (2006) 145 Cal.App.4th 613, 623; see also Sustainability of Parks, Recycling & Wildlife Legal Defense Fund v. County of Solano Dept. of Resource Management (2008) 167 Cal.App.4th 1350, 1359; CV Amalgamated, supra, 82 Cal.App.5th at p. 279.)
The alleged duties that gives rise to the first cause of action are on the part of the City to ensure that the noise level emanating from Island Brewery’s commercial use or operation does not exceed five decibels above the ambient level of the area, and on the part of the city manager to enforce all laws and ordinances, among other things. (Pet., ¶ 39(a).) The Petition also shows that the duties at issue are imposed under Municipal Code sections 14.20.110 and 2.08.110. (Ibid.) The Petition asserts that the City and its manager have failed to carry out those duties, because Island Brewing continues to host outdoor live music events which exceed the five decibel limit set forth in Municipal Code section 14.20.110. (Petition, ¶ 41.)
On demurrer, the court is not required to accept “the truth of argumentative allegations about the legal construction, operation, and effect of statutory provisions; similarly, [a demurrer] does not admit the truth of allegations that challenged actions are arbitrary and capricious or an abuse of discretion.” (Building Industry, supra, 235 Cal.App.3d at p. 1645.) Instead, the question of whether Municipal Code sections 14.20.110 and 2.08.110 “impose a ministerial duty, for which mandamus will lie, or a mere obligation to perform a discretionary function is a question of statutory interpretation.” (California Public Records Research, Inc. v. County of Yolo (2016) 4 Cal.App.5th 150, 178.) “In order to construe a statute as imposing a mandatory duty, the mandatory nature of the duty must be phrased in explicit and forceful language.” (Quackenbush v. Superior Court (1997) 57 Cal.App.4th 660, 663; accord Siskiyou Hospital, Inc. v. County of Siskiyou (2025) 109 Cal.App.5th 14, 37 (Siskiyou).)
“As with any statutory construction inquiry, we must look first to the language of the statute.” (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1047.) “If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.” (People v. Snook (1997) 16 Cal.4th 1210, 1215.)
The Municipal Code unambiguously prohibits the “noise level emanating from any commercial use or operation” to “exceed five (5) decibels above the ambient level of the area.” (Carpinteria Municipal Code, § 14.20.110.) The demurrer advances no legal or factual argument showing any exception to that provision. Also relevant here, the Municipal Code provides: “it shall be [the city manager’s] duty ...: [¶] A. To enforce all laws and ordinances....” (Carpinteria Municipal Code, § 2.08.110.)
Under a plain meaning of the code sections set forth above and expressly cited in the Petition, those sections do not clearly or explicitly describe or define any action or course of conduct that the City or its manager must, without qualification, take in circumstances where a commercial use or operation exceeds the specified decibels; do not prescribe the manner in which the City or its manager are required to enforce Municipal Code section 14.20.110 in the event noise levels from any commercial use or operation exceed specified decibels; and do not clearly or explicitly describe, define, or prescribe, without qualification, the specific manner in which the city manager must enforce all laws and ordinances. (Siskiyou, supra, 109 Cal.App.5th at p. 37 [general discussion].)
The demurrer also asserts that the Petition shows that the City was made aware of Petitioners’ complaints on numerous occasions, investigated those complaints and any violations, and ultimately decided not to prohibit outdoor live entertainment at Island Brewing. (Memorandum at p. 15, ll. 18-21.) The demurrer contends that Title 14 of the Municipal Code includes separate enforcement provisions contained in sections 14.84.040 and 14.84.050, which grant broad discretion to the city manager to determine if a violation exists and how to enforce against any such violation. The demurrer argues that the allegations described above in regard to the City’s investigation and decision not to prohibit outdoor live entertainment, show the exercise of discretion by the City under those sections of Title 14, which cannot be controlled by mandate.
In their opposition to the demurrer, Petitioners assert that the City misplaces its reliance on the Municipal Code sections cited in the City’s demurrer and described above, because those sections affirmatively direct the City to investigate purported violations and to take measures the City deems necessary or expedient to enforce compliance. Petitioners further contend that the writ sought in the Petition is proper because it seeks only to compel the City to enforce its laws and not the manner in which the City must undertake any such enforcement.
“Discretion, on the other hand, is the power conferred on public functionaries to act officially according to the dictates of their own judgment.” (Rodriguez, supra, 1 Cal.App.4th at pp. 501–502.) “Mandamus will not lie to control an exercise of discretion, i.e., to compel an official to exercise discretion in a particular manner. Mandamus may issue, however, to compel an official both to exercise his discretion (if he is required by law to do so) and to exercise it under a proper interpretation of the applicable law.” (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442.) “Although a court may order a government entity to exercise its discretion in the first instance when it has refused to act at all, the court will not ‘compel the exercise of that discretion in a particular manner or to reach a particular result.’ [Citation.]” (Daily Journal Corp. v. County of Los Angeles (2009) 172 Cal.App.4th 1550, 1555.)
“However, mandamus will lie to correct an abuse of discretion or the actions of an administrative agency which exceed the agency’s legal powers.” (Saleeby v. State Bar (1985) 39 Cal.3d 547, 562, original italics.) “When a court reviews a public entities’ 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. [Citation.] Thus, the judicial inquiry in an ordinary mandamus proceeding 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; see also Excelsior College v. Board of Registered Nursing (2006) 136 Cal.App.4th 1218, 1239 [“a challenger must show the official acted ... beyond the bounds of reason....”].)
The relevant provisions of the Municipal Code cited and relied on in the demurrer to argue that the Petition shows the exercise of discretion by the City state: “The city manager, his deputies, assistants and the community development department are ... directed to investigate all purported violations of any of the provisions of [Title 14].” (Carpinteria Municipal Code, § 14.84.040.) Petitioners do not appear to dispute that the allegations of the Petition described above are sufficient to show, expressly and by inference, that the City investigated the purported violations of decibel limits set forth in Municipal Code section 14.20.110. (See, e.g., Petition, ¶¶ 25-26 [alleging that the City monitored sound levels and published the results in the Report].)
Municipal Code section 14.84.050 on which the City relies further provides, in relevant part: “If a violation is determined to exist or to be impending, the city manager, his deputies, assistants or the community development department are authorized and directed to take such measures as they deem necessary or expedient to ... secure compliance with the provisions of [Title 14], including the signing of complaints and other legal documents.” (Carpinteria Municipal Code, § 14.84.050.) Municipal Code section 14.20.110 appears in Chapter 14.20 of Title 14 of the Municipal Code.
The City does not appear to dispute that Municipal Code section 14.84.050 is clear and unambiguous. Though the demurrer fails to cite the entirety of that section, its plain meaning expressly and explicitly directs the city manager to secure compliance with the provisions of Title 14 of the Municipal Code if a violation is determined to exist be impending. Though the language of that section indicates or suggests that the city manager has discretion to determine whether a violation exists or is impending, the conclusory arguments advanced in the demurrer fail to explain why the directive to “secure compliance with the provisions of [Title 14]” contained in Municipal Code section 14.84.050, is not explicit, or mandatory in nature, or does not require the city manager to secure compliance with Municipal Code section 14.20.110, upon a determination that a violation exists. (See Blankenship v. Michalski (1957) 155 Cal.App.2d 672, 675–676 [general discussion].)
Even if the court were to assume that Municipal Code section 14.84.050 grants discretion to the city manager to choose among measures they may deem necessary or expedient to secure compliance with Title 14, the demurrer fails to explain why the language of that section grants the city manager discretion to refuse to secure compliance with Title 14 where a violation is determined to exist, notwithstanding whether the city manager may “choose among various enforcement mechanisms to secure compliance with the code[.]” (Terminal Plaza Corp. v. City and County of San Francisco (1986) 186 Cal.App.3d 814, 831–832, 834.) For these reasons, the demurrer fails to show why the City is not, pursuant to section 14.84.050, charged with a ministerial duty to secure compliance with Title 14 of the Municipal Code. (Ibid.)
In addition, to the extent the Petition shows that the City’s investigation revealed that the noise levels emanating from Island Brewing’s commercial use or operations exceed the decibel limits of Municipal Code section 14.20.110 (petition, ¶¶ 27-28), it is reasonable to interpret the Petition to allege, expressly and by inference, that any measures purportedly taken by the City or its manager failed to secure Island Brewing’s compliance with those decibel limits, as required by section 14.84.050 (petition, ¶¶ 23, 29-30).
The Petition also alleges that the City claims its live entertainment license conditions do not limit sound levels, and that the License allows Island Brewing to continue live outdoor music events notwithstanding whether those events violate the Municipal Code. (Petition, ¶¶ 5, 24, 30-31.) The demurrer argues that the license issued to Island Brewing, including its amended conditions, allows live outdoor entertainment, but fails to address the Municipal Code section cited in the Petition, which states: “A license granted pursuant to [Chapter 5.04] does not permit any occupation or activity which is not permitted by the ordinance codified in ... this code or any other ordinance, code, regulation or rule or law, whether adopted by this city, the state of California or the federal government.” (Carpinteria Municipal Code, § 5.04.040.)
Further, though the City requests that the court take judicial notice of a “Live Entertainment License” issued by the City to Island Brewing on November 30, 2023 (the 2023 LEL), and the amended conditions and renewal of the 2023 LEL, the demurrer fails to explain why the 2023 LEL operates to exclude Island Brewing, or its commercial uses or operations, from the decibel limits set forth in the Municipal Code, notwithstanding whether the 2023 LEL or its amended conditions permit live outdoor entertainment. (See, e.g., Declaration of Christopher R. Guillen [Guillen Dec.], exhibit C at pdf p. 39, ¶ E & pdf p. 40 [note re monitoring of noise levels]; exhibit D, ¶¶ 2, 4, 7 [addressing or referencing sound levels, “unreasonable noise”, and violations of the “CMC”].)
It is reasonable to infer from the express allegations of the Petition, which show that the operations of Island Brewing exceed the decibel limits contained in Municipal Code section 14.20.110, that Petitioners also assert a claim based on a purported failure by the City to take any measures to secure compliance with the decibel limits of Municipal Code section 14.20.110, and that any measures undertaken by the City lack evidentiary support. (Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1265.) A reasonable interpretation of the Petition also shows that Petitioners assert, expressly and by inference, that the City, in undertaking any measures to secure compliance, did not consider “all pertinent factors”, or established “a reasonable connection between those factors, its decision, and the intent of the enabling statute.” (San Diego Public Library Foundation v. Fuentes (2025) 111 Cal.App.5th 711, 721.) For these and all reasons further discussed above, the Petition alleges facts which, if proven, are sufficient to show an abuse of discretion which “[m]andamus may ... issue to correct....” (Ellena v. Department of Ins. (2014) 230 Cal.App.4th 198, 206.)
The demurrer also argues that the claims asserted by Petitioners against Island Brewing afford Petitioners an adequate remedy at law, which may include an injunction. For this additional reason, the City contends, the Petition fails to show an entitlement to relief by writ of mandate.
“ ‘The remedy by mandamus will be denied only when the party seeking relief has a plain remedy at law which is not only speedy, but adequate in the sense that in and of itself it is capable of directly affording and enforcing the relief sought; and if it be found that the remedy at law, although it could and might result in a judgment for plaintiff, is nevertheless inherently incapable of compelling the performance of the specific act which forms the subject matter of an application in mandamus, it cannot be said that the remedy at law is equally convenient, beneficial, and effective to the extent that it will supersede the remedy by mandamus. [Citations.]’ [Citations.]” (A.B.C. Federation of Teachers v. A.B.C. Unified Sch. Dist. (1977) 75 Cal.App.3d 332, 341–342.) “Whether there is a ‘ “plain, speedy and adequate remedy, in the ordinary course of law”” ’ within the meaning of the statute usually is regarded as a question of fact that requires an evaluation of the circumstances of each particular case. [Citations.]” (Villery v. Department of Corrections & Rehabilitation (2016) 246 Cal.App.4th 407, 414 (Villery).)
Wholly absent from the demurrer is any reasoned factual or legal analysis or argument showing “(1) the legal foundation for that remedy and (2) how the remedy relates to the relief sought by the plaintiff.” (Villery, supra, 246 Cal.App.4th at p. 415.) The demurrer also fails to show why any remedy at law is “speedy”. In addition, and notwithstanding whether any claims asserted in the Petition against Island Brewing might result in a judgment for Petitioners, the demurrer also fails to explain why any such remedy is capable of compelling the City to enforce the provisions of the Municipal Code at issue in the Petition, within the meaning of Code of Civil Procedure section 1085. For these and all further reasons discussed above, the demurrer fails to show why the Petition shows the existence of a speedy or adequate remedy at law.
For all reasons discussed above, the Petition alleges facts which are, for present purposes, sufficient to show an entitlement to the relief requested in the first cause of action in regard to a writ compelling the City to enforce the Municipal Code by securing compliance with the decibel limit set forth in section 14.20.110 of the Municipal Code. The court does not, at this stage of the proceedings, consider whether Petitioners can prove their allegations. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) The Petition also does not show, expressly or by inference, that there exists a plain, speedy, or adequate remedy at law. For these and all further reasons discussed herein, the court will overrule the demurrer to the first cause of action on the grounds stated.
As the court will overrule the demurrer to the first cause of action for the reasons stated herein, the court need not reach the issue of whether the Petition also establishes an entitlement to a writ of mandate compelling the City to enforce the CUP/CDP. Furthermore, to the extent the demurrer is directed to only part of the first cause of action asserting an entitlement to a writ of mandate compelling the City to enforce the CUP/CDP, “a demurrer cannot rightfully be sustained to part of a cause of action....” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.) The court notes, however, that the same or similar reasoning and analysis apply. (See, e.g., Guillen Dec., exhibit A at p. 4, ¶ 9 & p. 8, ¶ 40 [CUP/CDP conditions addressing public nuisance arising from amplified sound equipment, periodic inspections to respond to noise complaints, and public hearings to ensure compliance with Municipal Code where the City determines there has been a violation].)
As to the second cause of action for declaratory relief, the demurrer argues that cause of action constitutes a collateral attack on the City’s administrative decision to issue the License to Island Brewing, which may not be reviewed by declaratory relief. The City also asserts that the declaratory relief action is derivative of both the first cause of action for writ of mandate and the causes of action alleged against Island Brewing. For these reasons, the City contends, the declaratory relief claim fails as a matter of law.
“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.) Further, “declaratory relief may be asked alone or with other relief[.]” (Herrmann v. Fireman’s Fund Ins. Co. (1954) 127 Cal.App.2d 560, 566 [also noting that “a plaintiff’s right to proceed is not barred by the fact that ... traditional or statutory ... alternative remedies are available.”].) “ ‘[A] general demurrer is usually not an appropriate method for testing the merits of a declaratory relief action, because the plaintiff is entitled to a declaration of rights even if it is adverse to the plaintiff’s interest.’ [Citation.]” (Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 751.)
The Petition alleges the existence of an actual, present controversy relating to the legal rights and duties of Petitioners and the City in regard to whether the City may be compelled to enforce the relevant provisions of the Municipal Code and the conditions of the CUP/CDP. These allegations, which include the facts concerning the underlying dispute, are legally sufficient. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80.) Furthermore, the availability of other remedies as to the causes of action asserted against Island Brewing does not render the cause of action for declaratory relief duplicative. (Kirkwood v. California State Automobile Assn. Inter-Ins. Bureau (2011) 193 Cal.App.4th 49, 59.) For this and all other reasons discussed above, the court will overrule the demurrer to the second cause of action for declaratory relief on the grounds stated.
The City’s request for judicial notice:
In support of its demurrer, the City requests judicial notice of: (1) (exhibit A) the CUP/CDP issued by City to Island Brewing on February 3, 2014; (2) (exhibit B) City of Carpinteria Ordinance No. 744 (Ordinance 744); (3) (exhibit C) the 2023 LEL; (4) (exhibit D) amended conditions (the Amended Conditions) to the 2023 LEL issued by the City to Island Brewing, and signed by Island Brewing, on June 12, 2024; and (5) (exhibit E) the City’s January 6, 2025, renewal of the 2023 LEL (the LEL Renewal). (City RJN at p. 2, ll. 5-15.) Exhibits A through E are attached to the declaration of the City’s counsel, Christopher R. Guillen, submitted in support of the motion. (Guillen Dec., ¶¶ 2-6.)
The court will grant the requests for judicial notice of exhibits A and C through E as official acts. (See Evid. Code, § 452, subds. (c), (h); see also Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 296 [license issued by public agency]; Ojavan Investors, Inc. v. California Coastal Com. (1994) 26 Cal.App.4th 516, 527 [restrictions appearing in permits].) Judicial notice does not extend to the truth of factual matters set forth in such documents. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569.)
Though exhibit B (Ordinance 744) as a public entity legislative enactment and official act (Evid. Code, § 452, subds. (b), (c); Trinity Park, L.P. v. City of Sunnyvale (2011) 193 Cal.App.4th 1014, 1027), the City request judicial notice of Ordinance 744 ostensibly to show the circumstances underlying the granting of the 2023 LEL by the City. (Memorandum at p. 11, ll. 20-24.)
“A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. No other extrinsic evidence can be considered.” (Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.) As the passing of Ordinance 744 does not appear on the face of the Petition, that ordinance constitutes extrinsic evidence which the court may not consider for present purposes. Further, “[t]he hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.)
For all reasons discussed above, and as the passing of Ordinance 744 is of questionable relevance to the issue of whether the Petition states facts sufficient to constitute a cause of action (Evid. Code, § 350; Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276), the court will deny the request for judicial notice of Ordinance 744.
(2) Alternative Motion to Strike
The demurrer, alternatively, includes a request for an order striking certain allegations of the Petition. As grounds for this request, the City asserts that the request for a writ of mandate compelling the City to enforce the CUP/CDP is effectively a collateral attack on the validity of Ordinance 781, the corresponding section of the Municipal Code, and the amended conditions of the License. Because an action challenging local zoning and planning decisions is subject to a 90 day statute of limitations under Government Code section 65009, and an action seeking to void a decision by the City is subject to a 90 day period under the Municipal Code, the City argues, Petitioners were required to bring their claims no later than September 10, 2024. For these reasons, the demurrer asserts that Petitioners’ claims are time barred.
“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.” (Code Civ. Proc., § 436.)
“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)
To raise the bar of a statute of limitations, “[t]he running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred. [Citation.] If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment ….’ [Citation.]” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325, italics omitted.)
Even if the court were to assume without deciding that Ordinance 781 is a zoning ordinance, a reasonable interpretation of the Petition shows that Petitioners do not seek to “attack, review, set aside, void, or annul” the City’s decision to adopt that ordinance, or to determine the reasonableness, legality, or validity of any condition attached to the CUP/CDP. (Gov. Code, § 65009, subd. (c)(1)(B) & (E).) Instead, the Petition expressly alleges that Ordinance 781 does not affect permitted noise levels, the conditions of the CUP/CDP, or existing regulations; and requests that the court issue a writ compelling the enforcement of those conditions. It can be reasonably inferred from these allegations that the Petition does not seek to attack, review, set aside, void or annul the City’s decision to adopt Ordinance 781, or any conditions of the CUP/CDP.
In addition, and subject to exception, Government Code section 65009 provides that “no action or proceeding” may be maintained in the cases described in subdivision (c)(1)(A) through (F) of that section, “unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision[.]” (Gov. Code, § 65009, subd. (c)(1).) To the extent any action or proceeding described in Government Code section 65009, subdivision (c)(1)(A) through (F), accrues upon a decision by the City, the demurrer does not address, with reasoned argument, whether the Petition pleads facts showing that Petitioners discovered, or had reason to discover, that cause of action. (See Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807–808 [discussion of “discovery rule”].) For these and all further reasons discussed above, the demurrer fails to show why the running of the limitations period clearly appears in the Petition.
Even if the court were to assume without deciding that the Petition shows, on its face, that the allegations which are the subject of the motion to strike are time barred, “[a] material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense.” (Code Civ. Proc., § 431.10, subd. (a).) “[M]atter that is essential to a cause of action should not be struck and it is error to do so.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.)
The matters subject to the motion to strike include allegations: describing conditions of the CUP/CDP; that the outdoor live music events are in violation of the conditions of the CUP/CDP; that the License addresses noise levels or is governed by the Municipal Code; setting forth the text of Municipal Code provisions; showing the date the CUP/CDP was approved and the findings of the Planning Commission; that the CUP/CDP governs; that Island Brewing is in violation of the CUP/CDP; that the License does not supersede the CUP/CDP; and asserting an entitlement to relief, among other allegations. (Memorandum at pp. 19-20.)
These matters which the City seeks to strike from the Petition appear essential to the claims alleged in the Petition, including those asserted against Island Brewing, and the remedies sought by Petitioners. (See, e.g., Petition, ¶¶ 52 & 66 [incorporating matters which the City seeks to strike].) For these and all further reasons discussed above, and as the court will overrule the demurrer to the first and second causes of action, the court will deny the City’s alternative motion to strike.