Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC376027, Elihu M. Berle, Judge.
Case, Knowlson & Jordan and Gary S. Mobley for Plaintiff and Appellant.
Rockard J. Delgadillo, City Attorney, Jeri L. Burge, Assistant City Attorney and Terry P. Kaufmann Macias, Deputy City Attorney for Defendant and Respondent.
TURNER, P. J.
I. INTRODUCTION
Plaintiff, Davis Group Realty LLC, appeals from an order granting judgment on the pleadings in favor of defendant, City of Los Angeles, on an inverse condemnation complaint. The complaint concerned placement of a mural sign on the side of the Davis Group Building, which is owned by plaintiff. The trial court ruled the issues raised by the inverse condemnation complaint were barred by res judicata principles having been previously decided against plaintiff’s predecessor in interest in a prior case. In an earlier opinion, we upheld a decision of the defendant’s Board of Building and Safety Commissioners (“the board”) that a mural sign on the side of the building was erected without a valid permit. (Davis Glick Partnership v. City of Los Angeles (Mar. 28, 2006, B179979) [nonpub. opn.] We affirm the order granting defendant’s judgment on the pleadings motion.
II. BACKGROUND
A. The Complaint
In reviewing entry of judgment on the pleadings, we assume the truth of all properly pled factual allegations and give them a reasonable interpretation. (See Gerawan Farming, Inc. v. Kawamura (2004) 33 Cal.4th 1, 32; People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) On June 18, 2007, plaintiff filed the present inverse condemnation action against defendant. The complaint alleged that plaintiff was the successor-in-interest to Davis Glick Partnership, the previous owner of the building. In 1996, plaintiff applied to defendant’s Cultural Affairs Commission (the commission) for approval to erect a mural sign on the wall of the building. The proposed mural would have the image of a T-Rex dinosaur. In October 1996, plaintiff received approval from the commission to erect the mural sign as a work of art. The mural sign was placed on the wall of the building in early 1997 and remained there until 2003.
The complaint further alleged that, in 1997, defendant’s Department of Building and Safety (“the department”) had a written policy dated June 6, 1996, that no building permit was required for any mural sign that was approved by the commission. The department had an informal policy and practice of advising applicants that a building permit was not required to lawfully erect a mural sign. The department refused to accept applications for building permits for mural signs.
It was alleged that, in 2001, defendant changed its general policy toward mural signs. Defendant enacted an interim ordinance which generally prohibited new mural signs in the city. The ban was made permanent on April 17, 2002. The city also changed its policy about building permits and began requiring them for mural signs. In February 2003, plaintiff decided to change the display on the mural sign to depict “Shrek”, a new Universal Studios amusement attraction. The mural sign was changed in May 2003. On May 13, 2003, defendant issued an order to comply against plaintiff. The order to comply stated that the new display was erected without a valid permit and demanded its removal.
Plaintiff alleged it sought administrative review of the order to comply by filing an appeal with the board. Paragraph 20 of the complaint alleged that in the administrative appeal before the board, “Plaintiff argued that the Mural Sign was lawfully erected in full compliance with all state laws and local ordinances and, therefore, constituted a protected property interest that could not be taken by the City without payment of just compensation under California Business and Professions Code, section 5412, and the Takings Clause of the Fifth and Fourteenth Amendments of the United States Constitution.” Paragraphs 21 and 26 of the complaint allege that arguments had been made in a prior lawsuit in the trial and appellate courts that the mural sign was lawfully erected, was a protected property interest, and could not be taken by defendant without payment of just compensation under state and federal law. The complaint further alleged: the department argued in the administrative appeal that the original mural sign was not legal because plaintiff did not obtain a building permit, the board affirmed the department’s decision and upheld the validity of the order to comply; plaintiff sought review of the board’s decision by administrative mandamus in the first lawsuit; defendant argued in the first lawsuit that the mural sign was not lawfully erected; plaintiff’s administrative mandate request was denied; judgment was entered in defendant’s favor; plaintiff appealed from the judgment denying its mandate petition; in the prior appeal, the dispute centered on whether the mural sign was lawfully erected because plaintiff never obtained a building permit; while the appeal was pending, plaintiff removed the mural sign in October 2005 under threat of criminal prosecution; the judgment denying the mandate petition was affirmed in March 2006; and the appellate decision concluded that a building permit was required by the city sign ordinance in order to lawfully erect a mural sign.
The complaint alleged our decision in the first lawsuit was predicated on the conclusion that a building permit was required under defendant’s sign ordinance to lawfully erect a mural sign. Apparently disagreeing with our prior holding, the complaint alleges: “However, at the time Plaintiff’s Mural Sign was originally erected in early 1997, the City had an established written policy that a building permit was not required for a mural sign approved by the Cultural Affairs Commission. Consistent with this written policy, the Department also had an informal policy and practice of advising applicants that a building permit was not required to lawfully erect a mural sign, in fact, refused to even accept applications for building permits for mural signs.” Plaintiff alleges it is entitled to compensation under estoppel principles. The complaint alleges: an estoppel exists because defendant had represented and its policies provided a building permit was not required for a mural; plaintiff relied on those representations and did not apply for a building permit in 1997 when the original sign was erected; plaintiff would have applied for a permit had it known of the requirements before erecting the original mural sign and obtained a protectable property interest; and defendant is estopped to deny that a building permit was required or that the mural sign was not lawfully erected.
B. The Judgment on the Pleadings Motion
On January 17, 2008, defendant answered the complaint. The fourth affirmative defense alleges that plaintiff’s claims are barred by res judicata and collateral estoppel principles. On April 4, 2008, relying on its fourth affirmative defense, the city moved for judgment on the pleadings based on res judicata principles.
In support of the motion, defendant requested judicial notice of documents from the first lawsuit which resulted in our unpublished opinion. Our unpublished opinion explained that the October 1996 application filed with the commission indicated plaintiff intended to paint a 1,560 foot mural of a jungle scene, with the image of an angry dinosaur on the side of the building. (Davis Glick Partnership v. City of Los Angeles, supra, typed opn. at p. 3.) Plaintiff had explained that the “dinosaur image is just for fun” and “dinosaurs are in vogue.” (Id. at pp. 3-4.) However, rather, than painting a mural as represented, plaintiff painted the logo and copyrighted image of the Jurassic Park dinosaur. The image advertised the Jurassic Park ride at Universal Studios’ theme park. (Id. at p. 4.) The department issued an order to comply for failing to obtain a permit in 1997 after the original mural was placed on the wall. Because the commission had approved the dinosaur mural, the department did not enforce the 1997 order to comply. In April 2002, defendant amended its sign ordinance to prohibit the issuance of new permits for new mural signs but allowed existing mural signs to remain. (Ibid.) In 2003, plaintiff sought to change the dinosaur image copy by painting over it and creating a new image. The commission denied the application and referred plaintiff to the department. The department denied plaintiff’s application. (Ibid.) The department advised plaintiff that no sign permit had been issued for a mural sign for the dinosaur image. (Ibid.) Because of the new sign ordinance, only a mural could be painted on the wall. (Id. at pp. 4-5.) We concluded, “[S]ubstantial evidence supports the decision of the Board upholding the Department’s determination that [plaintiff] did not have a valid mural sign permit when it erected the Dinosaur Graphic, and therefore has no right to change the copy of its sign without securing a new permit.” (Id. at p. 9)
Defendant cited allegations in the present complaint that plaintiff had changed the display on the mural sign to display the character “Shrek” in 2003. This prompted defendant to issue an order to comply on May 13, 2003. The order to comply stated the new mural was erected without a valid permit and demanded removal of the new “Shrek” image. Defendant also cited allegations in the complaint which mirrored those in the first lawsuit. Similar allegations in the two complaints included the following: plaintiff had appealed the department’s May 2003 order to comply to the board arguing the mural sign was lawfully erected; the mural was a protected property interest which could not be taken without just compensation; and the board upheld the department’s determination that the original sign was illegal because plaintiff had never obtained a permit.
Defendant asserted it was entitled to entry of judgment on the pleadings because: the final judgment in the first lawsuit determined both the validity of the department’s determination that plaintiff’s mural sign lacked a valid permit and the validity of the May 13, 2003 order to comply; the complaint in this case has the same allegations as those in the first lawsuit but differ only as to the relief sought and contains a new estoppel theory concerning payment of just compensation; and the alleged right to erect a mural sign on the side of the building is the same primary right raised in both lawsuits. Defendant further contended that plaintiff’s failure to overturn the department’s decision barred any damages claim.
Plaintiff opposed defendant’s judgment on the pleadings motion arguing the doctrine of res judicata did not apply to this case. Plaintiff argued: this case does not involve the same issues litigated in the first lawsuit; the first lawsuit was a mandate action which litigated the sole issue of whether a building permit was a necessary legal prerequisite; the final judgment in the first lawsuit concluded that a permit was required before a mural sign could be considered to have been lawfully erected; the legal and constitutional impact of the first lawsuit was that plaintiff’s property interest in the mural sign was taken; and the present action is based on estoppel contentions that plaintiff was damaged by defendant’s misrepresentations that a building permit was not required when the mural sign was first erected.
In reply, defendant argued that plaintiff had mischaracterized the issues in the two lawsuits. Defendant asserted that the first lawsuit raised four issues: whether plaintiff had a valid mural sign permit from the commission; whether a building permit was required for mural signs because such signage did not involve the construction of a structure; whether the department had written policy of not requiring building permits for mural signs in 1996 and 1997; and whether a building permit was required based on the department’s statements that a building permit was unnecessary, rather only approval by the commission was required. Defendant contended that the issues were the same in the present action but that plaintiff had changed its theory to one of estoppel.
Defendant’s judgment on the pleadings motion was granted with 10 days leave to amend. The trial court ruled: the issues litigated in the two lawsuits are the same with regard to the right to maintain the mural and the order forcing its removal because of a lack of a building permit; res judicata principles apply to an inverse condemnation action where the right to be free from interference was unsuccessfully challenged by the first lawsuit; and the judgment in the first lawsuit is entitled to res judicata effect in the present inverse condemnation action. Plaintiff elected not to amend the complaint. After judgment was entered, plaintiff filed this timely appeal.
III. DISCUSSION
Judgment on the pleadings in favor of a defendant may be entered when the complaint fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 438, subd. (c)(3)(B)(ii); Colberg, Inc. v. State of California ex rel. Dept. of Public Works (1967) 67 Cal.2d 408, 411-412; Rolfe v. California Transportation Com’n (2002) 104 Cal.App.4th 239, 242.) In reviewing a judgment on the pleadings, we apply the same rules governing the review of a demurrer dismissed. (Gerawan Farming, Inc. v. Kawamura, supra, 33 Cal.4th at p. 32; Smiley v. Citibank (1995) 11 Cal.4th138,145-146.) Our Supreme Court has defined our task as follows, “‘Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action.’” (People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th at p. 300; Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) We assume the truth of allegations in the complaint which have been properly pleaded and gives it a reasonable interpretation by reading it as a whole and with all its parts in their context. (Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 558; People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th at p. 300; Aubry v. Tri-City Hospital Dist.(1992) 2 Cal.4th 962, 967.) However, the assumption of truth does not apply to contentions, deductions, or conclusions of law and fact. (People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th at pp. 300-301; Moore v. Regents of University of California, supra, 51 Cal.3d at p. 125.) Furthermore, any allegations that are contrary to the law or to a fact of which judicial notice may be taken will be treated as a nullity. (Interinsurance Exchange v. Narula (1995) 33 Cal.App.4th 1140, 1143; Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955.)
Plaintiff’s inverse condemnation claims are barred under res judicata principles by the judgment in the first lawsuit. In Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 620, our Supreme Court explained: “‘The doctrine of res judicata precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction.’ (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 810 [].)” The standard for determining when a matter will be deemed decided by a prior judgment is as follows: “Obviously, if it is actually raised by proper pleadings and treated as an issue in the cause, it is conclusively determined by the first judgment. But the rule goes further. If the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. The reason for this is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable.” (Sutphin v. Speik (1940) 15 Cal.2d 195, 202; see also In re Marriage of Mason (1996) 46 Cal.App.4th 1025, 1028; Avery v. Avery (1970) 10 Cal.App.3d 525, 529-530.) The party asserting the application of res judicata has the burden of proving the requirements. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341; Vella v. Hudgins (1977) 20 Cal.3d 251, 257.)
Application of res judicata depends upon establishing three elements: “[] Was the issue decided in the prior adjudication identical with the one presented in the action in question? [] Was there a final judgment on the merits? [] Was the party against whom the plea is asserted a party to or in privity with a party to the prior adjudication?” (Levy v. Cohen (1977) 19 Cal.3d 165, 171; accord Nathanson v. Hecker (2002) 99 Cal.App.4th 1158, 1162.) Defendant established all three res judicata elements. First, the two lawsuits raise the same issues. The issues raised in the first lawsuit were: whether plaintiff had a right to erect a mural on the side of its building without a permit; whether the department had properly issued an order to comply on May 13, 2003, when it determined the “Shrek” mural was unlawful; whether the mural sign was a protected property interest such that interference with the right invoked just compensation standards; and whether the board’s decision upholding the department’s action should be set aside by a writ of mandate. The present complaint raises the following issues: whether plaintiff has a right to erect a mural on the side of its building without a permit; whether the order forcing the removal of the mural was lawful; and whether plaintiff is entitled to compensation for interference with its property right. The issues of the right to maintain the mural and challenging the order demanding its removal because of the absence of a permit are, for res judicata purposes, the same.
There is no merit to plaintiff’s argument that because it is seeking damages in the present case, while the first litigation did not, res judicata principles are inapplicable. Plaintiff’s change in theory and different request for relief does not prevent res judicata from applying here. (Federation of Hillside & Canyon Associations v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202; Henry v. Clifford (1995) 32 Cal.App.4th 315, 321; Tensor Group v. City of Glendale (1993) 14 Cal.App.4th 154, 160.) The Court of Appeal has held: “‘[T]he key issue is whether the same cause of action is involved in both suits. California law approaches the issue by focusing on the “primary right” at stake: if two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief and/or adds new facts supporting recovery. [Citations.]’ [Citation.]” (Henry v. Clifford, supra, 32 Cal.App.4th at p. 321; see Tensor Group v. City of Glendale, supra, 14 Cal.App.4th at p. 160.) Plaintiff’s two lawsuits involve the same injury—the right to place a mural on its building without a permit.
The second res judicata element—a final judgment on the merits in the first lawsuit—is present here. The first action expressly involved the issues of whether the city acted wrongfully in requiring a permit in order to erect a mural. (California Coastal Com. v. Superior Court (1989) 210 Cal.App.3d 1488, 1493; see also Mola Development Corp. v. City of Seal Beach (1997) 57 Cal.App.4th 405, 410-411; Rossco Holdings, Inc. v. State of California (1989) 212 Cal.App.3d 642, 660.) In order to pursue a damages claim after the mandate proceeding, plaintiff was required to successfully raise the issue of whether the department’s conduct was wrongful. (See Hensler v City of Glendale (1994) 8 Cal.4th 1, 7, 25-28 [concluding that a landowner may bring a mandamus proceeding to challenge a regulation and subsequently bring an action for damages but the damages issues “must be litigated in any inverse condemnation action which does not allege that a taking has already been [adjudicated by a court]”; see also Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 779 [damage claim requires a “successful” challenge to the regulation].) Plaintiff”s lack of success in the first lawsuit challenging defendant’s conduct barred the damages action for inverse condemnation.
Finally, the third res judicata element privity is present. Plaintiff’s predecessor in interest lost the first lawsuit. Because all three elements are present, res judicata barred the inverse condemnation action. Thus, the privity element is present. (Federation of Hillside & Canyon Associations v. City of Los Angeles, supra, 126 Cal.App.4th at p. 1202; Henry v. Clifford, supra, 32 Cal.App.4th at p. 321; Tensor Group v. City of Glendale, supra, 14 Cal.App.4th at p. 160.) The judgment on the pleadings motion was correctly granted.
IV. DISPOSITION
The judgment is affirmed. Defendant, the City of Los Angeles, is awarded its costs on appeal from plaintiff, the Davis Group Realty, LLC.
I concur: ARMSTRONG, J.
MOSK, J., Concurring
I concur.
The mandamus proceeding is a prerequisite to a challenge of an unlawful taking and claim for damages. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 13-14; Mola Development Corp. v. City of Seal Beach (1997) 57 Cal.App.4th 405 (Mola); Patrick Medical Group, Inc. v. California Coastal Com. (1992) 9 Cal.App.4th 592.) The right to damages only results if it is determined in the mandamus proceeding that the government action is contrary to law or constituted a taking. That determination includes whether the government action failed to provide for just compensation. (See Mola, supra, 57 Cal.App.4th at p. 414 [“Hensler made this point clear. The court required a ‘prepayment judicial determination’ that a regulation is excessive and constitutes a taking in order to give a city the opportunity to change its mind before being compelled to pay damages”].) Plaintiff’s failure to obtain a determination of the invalidity of the ordinance in the mandamus proceeding precludes the relief sought here. (Ibid; but see Healing v. California Coastal Com. (1994) 22 Cal.App.4th 1158, 1169-1170, 1173-1179 .) Plaintiff could have, but did not, invoke estoppels or the right to compensation in the mandamus proceeding. It may not do so in a separate action.