Bprep 8500 Sunset LLC Et Al vs City of West Hollywood

Demurrer - with Motion to Strike (CCP 430.10)

Cal. Super. - 2nd Dist.September 26, 2018

B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MICHAEL R. MATTHIAS (SBN 057728) ELIZABETH M. TRECKLER (SBN 282432) BAKER & HOSTETLER LLP 11601 Wilshire Boulevard, Suite 1400 Los Angeles, CA 90025-0509 Telephone: 310.820.8800 Facsimile: 310.820.8859 Email: mmatthias@bakerlaw.com etreckler@bakerlaw.com Attorneys for Respondent and Defendant CITY OF WEST HOLLYWOOD SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES BPREP 8500 SUNSET LLC AND KORMAN COMMUNITIES, Petitioners and Plaintiffs, Vv. CITY OF WEST HOLLYWOOD; and DOES 1 through 25, inclusive, Respondents and Defendants. Case No.: BS175183 [Hon. Monica Bachner, Dept. 71] RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRER TO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT RESERVATION ID NO. 117102613770 Hearing Date: February 22, 2019 Time: 8:30 a.m. Dept.: 71 [Filed concurrently with Motion to Strike Portions ofPlaintiffs’ Petition and Complaint; Declaration ofElizabeth M. Treckler; Requestfor Judicial Notice; and (Proposed) Order] Action Filed: September 26, 2018 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT, TO ALL PARTIES, AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICEthat on February 22, 2019 at 8:30 a.m., or as soon thereafter as this matter may be heard in Department 71 of the above-referenced Court, Respondent and Defendant City of West Hollywood (the “City””) will, and hereby does, demur to Petitioners and Plaintiffs BPREP 8500 Sunset LLC (“BPREP”) and Korman Communities’ (“Korman,” and collectively, “Plaintiffs””) Combined Petition and Complaint (hereinafter, the “Complaint”) (the “Demurrer”). The City demurs to Plaintiffs’ Complaint as follows: I. The Complaint in its entirety as to Korman because Korman is not registered to do business in California and, therefore, lacks standing to sue the City in this action. Code Civ. Proc. §§ 367, 430.10(b), (e); 2. The First Cause of Action for Writ of Mandate Pursuant to Code of Civil Procedure Section 1085 failsto state facts sufficient to constitute a cause of action and is uncertain. Code Civ. Proc. §§ 430.10(e), (f); 3. The Second Cause of Action for Administrative Writ of Mandate Pursuant to Code of Civil Procedure Section 1094.5 fails to state facts sufficient to constitute a cause of action and is uncertain. Code Civ. Proc. §§ 430.10(e), (f); 4. The Third Cause of Action for Declaratory Relief fails to state facts sufficient to constitute a cause of action and is uncertain. Code Civ. Proc. §§ 430.10(e), (f); 5. The Fourth Cause of Action for Violation of Due Process and Equal Protection fails to state facts sufficient to constitute a cause of action and is uncertain. Code Civ. Proc. §§ 430.10(e), (f); 6. The Fifth Cause of Action for Breach of Contract fails to state facts sufficient to constitute a cause of action and is uncertain. Code Civ. Proc. §§ 430.10(e), (f); 7. The Sixth Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing failsto state facts sufficient to constitute a cause of action and is uncertain. Code Civ. Proc. §§ 430.10(e), (). 2 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLEASE TAKE FURTHER NOTICEthatif the Court sustains the Demurrer without leave to amend, the City will, and hereby does, move the Court for an order dismissing the entire Complaint with prejudice pursuant to Code of Civil Procedure § 581(f)(1) and § 581(d). Pursuant to Code of Civil Procedure section 430.41(a), counsel for the City met and conferred via telephone with Plaintiffs’ counsel more than five days prior to the filing deadline for this Demurrer. The parties were unable to resolve all objections raised by the City during the meet and confer process, and Plaintiffs would not agree to amend their Complaint. (See Declaration of Elizabeth M. Treckler, 99 3-4.) The City’s Demurreris based on this Notice, the attached Memorandum of Points and Authorities, the Declaration of Elizabeth M. Treckler, the Request for Judicial notice filed concurrently herewith, the pleadings and exhibits attached thereto, and upon all such further matters that the Court may properly consider prior to issuing a ruling hereon. Respectfully submitted, Dated: December 13, 2018 BAKER & HOSTETLER LLP By: /s/ Elizabeth M. Treckler Michael R. Matthias Elizabeth M. Treckler Attorneys for Respondent and Defendant CITY OF WEST HOLLYWOOD 3 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRER Respondent and Defendant City of West Hollywood demurs to Petitioners and Plaintiffs BPREP 8500 Sunset LLC (“BPREP”) and Korman Communities (“Korman,” and collectively, “Plaintiffs””) Complaint as follows: I. The Complaint in its entirety as to Korman because Korman is not registered to do business in California and, therefore, lacks standing to sue the City in this action. Code Civ. Proc. §§ 367, 430.10(b), (e); 2. The First Cause of Action for Writ of Mandate Pursuant to Code of Civil Procedure Section 1085 failsto state facts sufficient to constitute a cause of action and is uncertain. Code Civ. Proc. §§ 430.10(e), (f); 3. The Second Cause of Action for Administrative Writ of Mandate Pursuant to Code of Civil Procedure Section 1094.5 fails to state facts sufficient to constitute a cause of action and is uncertain. Code Civ. Proc. §§ 430.10(e), (f); 4. The Third Cause of Action for Declaratory Relief fails to state facts sufficient to constitute a cause of action and is uncertain. Code Civ. Proc. §§ 430.10(e), (f); 5. The Fourth Cause of Action for Violation of Due Process and Equal Protection fails to state facts sufficient to constitute a cause of action and is uncertain. Code Civ. Proc. §§ 430.10(e), (f); 6. The Fifth Cause of Action for Breach of Contract fails to state facts sufficient to constitute a cause of action and is uncertain. Code Civ. Proc. §§ 430.10(e), (f); 7. The Sixth Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing failsto state facts sufficient to constitute a cause of action and is uncertain. Code Civ. Proc. §§ 430.10(e), (). 4 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IL. III. IV. TABLE OF CONTENTS INTRODUCTIONc.countestates bees sbae sees nena ens 1 RELEVANT FACTUAL BACKGROUND .....cccuiiiiiiiiitciecients3 A. The Development Agreement ..........c.covuveeieeiiiiiiieniieeectseeeeee sees ene 3 B. BPREP’s Unapproved Use of the Property........ccccceeviieniienienieeeeeceieeie eee 4 LEGAL ARGUMENT .....ooitiitiititieseeeesteseee sete sreeeee 6 A. Legal Standard on DemMUITET..........ccciiiiiieriieiiecies6 B. Korman Lacks Standing to Bring Its Claims Because It Is Not Registered To Do Business in California ..........cooceevieniiiiniineiieiesee ceceseca 7 Plaintiffs’ First and Second Causes of Action Failto State a Claim ...................... 8 D. Plaintiffs’ Third Cause of Action for Declaratory Relief Fails to State a Claim ANA 1S TMPTOPETeventsst ee sabe sabe e nee eaaesaae ees 10 E. Plaintiffs’ Fourth Cause of Action for Violations of Due Process Rights Fails 0 State @ CLAIM .....eiuiiiiiiiieeiececeeeeseers 11 Plaintiffs’ Fifth Cause of Action for Breach of Contract Fails to State a Claim .. 12 G. Plaintiffs’ Sixth Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing Fails to State a Claim ..........ccccooceevueiienieniniinccieciene 14 H. The City’s Demurrer Should be Sustained Without Leave to Amend.................. 16 CONCLUSIONLotteeresshee ste est estates be sate sb tent estaba este enees 17 1 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal. APP. Ath 208...eeeeeeeeesteers eessaan7 Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal. 4th 902 .....ooneieeeie eeeaesates7,16 Berman v. City of W. Hollywood Rent Stabilization Dep't (1988) 197 Cal. APP. 3d 837eeeeeeeeteeeetesbeebssree es 8 Blank v. Kirwan (1985) 39 Cal. 3d 311woesteeeeeae sheetee sabe sheen 7 Breneric Associates v. City ofDel Mar (1998) 69 Cal.APP.Ath 1606ootsateeneee12 Burchett v. City ofNewport Beach (1995) 33 Cal. APP. Ath 1472 eeeeeeeeesateseers 11 Careau & Co., (1990) 222 Cal.APP.3d at 1395...ieeeeesti15 Casterson v. Sup. Ct. (2002) 101 Cal. APP. Ath 177conesereseste sete eae6 Catsouras v. Department of California Highway Patrol (2010) 181 CalLAPP.Ath 856neiceeeeeateries 11 City ofSantee v. Superior Court (1991) 228 Cal.APDP.3A 713.eeeeeeseeseeesaeeseeeseeseebeeeae 10 Cryolife, Inc. v. Sup. Ct. (2003) 110 Cal. APP. 4th T1145oon6 Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal. APP. 3d 1024...eeeeeesreesees7 2 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRER TO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Donabedian v. Mercury Ins. Co. (2004) 116 Cal. APP. 4th 908 .....oneiiieeiececeeee eter eerste eae saan7 Duffy v. City ofLong Beach (1988) 201 Cal. APP. 3d 1352.eissteseein 11 Flora Crane Service, Inc. v. Ross (1964) 61 Cal.2d 199ceieeeeteeee sates ee8 Fox v. Ehicon Endo-Surgery, Inc. (2005) 35 CaliAth 797 eeeeeeeeeeeeetesheetseaesateen 16 Frantz v. Blackwell (1987) 189 Cal. APP. 3A01erseersteeessees7 Holiday Matinee, Inc. v. Rambus (2004) 118 Cal. APP. 4th 1413ootsreesees6 Holland v. Morse Diesel Int’l, Inc. (2001) 86 Cal.APP.Ath 1443 o.ooeeeeesteerereeesaan7 Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.Ath OTT eeeeeeseteeeeeee sateseenssate sees9 O’Connell Gold Mines, Ltd. v. Baker (1944) 63 Cal. APP. 2d 384...eeeeeteessae7 Racine & Laramie, Ltd. v. Department ofParks & Recreation (1992) 11 Cal.APP.Ath 1026neemseesteeeeeeeeeeestaeseeeeeieens 15 Rezai v. City of Tustin (1994) 26 Cal.APP.Ath 443Loonieeaesteererens 10 Richman v. Hartley (2014) 224 CalLAPP.Ath 1182eeeseeseeestaanens 13 State of California v. Superior Court (1974) 12 Cal.3d 237eeeeeeeeeetesatesbeebsetter eee ens 10 Stubblefield Construction Co. v. City ofSan Bernardino (1995) 32 Cal. APP. Ath O87cnetesetestes 11 3 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Tejon Real Estate, LLC v. City ofLos Angeles (2014) 223 Cal.APP.AT 149, 155 ..oemoeeeeeeeeeeeeeeeeeeeeeeeeeee11 Tailfeather v. Board of Supervisors (1996) 48 Cal.APP.4th 1223 o.ooeeeeeteeseaesaan9 Townsel v. Superior Court (1999) 20 Cal. 4th 1084 .....coneieie eeeeeeeeeters estatessaan8 United Medical Management Ltd. v. Gatto (1996) 49 Cal. APP. 4th 1732 ...ooniiiieieecieceeeee7,8 Statutes Code Civ. Proc. § 430.10(b), (©), (£) crveeerreeeerieeeerie cetteeteeteerecta erasers etree eae eerie6,7 Code Civ. Proc. § 1085 o.ooeectsseesee eter ee save e esate eesaae eens 1,2,8,9 Code Civ. POC. § 1080eeeeeeeeesees steerer eee ate esses ee saae ee eenas2,8,10 Code Civ. Proc. § 1094.5...eeeeeesteers etree etree sate e eave eee 1,8, 10 COP. COA § 2T05(2) .eeueeeeniierie ete eit eet ee site ette etee sete sete ete erste estae este esse asnee esas esse esse aneeensee snes snseannes 7 GOVE COA § 905eectscease eee ea eee aae ee eate ee ease ae eaae ee ssne ee sareee sate aessbeeens6 West Hollywood Municipal Code...........ccccviriieniieiieeiiiniieniiececeeae3,4,5,12,13, 14, 16 4 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This case arises out of Petitioners and Plaintiffs BPREP 8500 Sunset LLC (“BPREP”) and Korman Communities’ (“Korman,” and collectively, “Plaintiffs”) operation and use of real property located at 8500 Sunset Boulevard, West Hollywood, California 90069 (the “Property”). With their Combined Petition and Complaint (the “Complaint”), Plaintiffs seek judicial approval of their (improper) conduct, and request that the Court overturn Respondent and Defendant City of West Hollywood’s (the “City”’) well-reasoned interpretation of its own Zoning Ordinance. Plaintiffs’ Complaint, however, is inappropriate as a matter of law and fails to adequately allege a single cause of action against the City. Thus, the Cityfiles this Demurrer to Plaintiff” Complaint. With their Complaint, Plaintiffs take issue with Zoning Interpretation 17-0001 (the “Zoning Interpretation”), issued by the West Hollywood Interim Director of Community Development in November 2017, and the subsequent decisions by the Planning Commission and the City Council (a) to uphold the Zoning Interpretation, and (b) on a de novo basis, that certain dwelling units on the Property are (i) being used as a “hotel,” (ii) not being rented on a “long-term basis,” and (iii) not being used as approved in accordance with the City’s zoning ordinance, the development agreement relating to the Property, and project entitlements (collectively, the “City’s Decision”). Plaintiffs assert that, by way of the Zoning Interpretation, the City erroneously and prejudicially concluded that Plaintiffs’ use of the residential dwelling units on the Property (i.e., as rentals for less than one-yearinitial terms) violated the City’s municipal code and did not constitute an approved use of the Property. Plaintiffs also claim that the City failed, at some point, to accept and process Plaintiffs permit applications related to their operation of the Property. Based upon these allegations, Plaintiffs assert six causes of action against the City: (1) Writ of Mandate Pursuant to Code of Civil Procedure section 1085; (2) Administrative Writ of Mandate Pursuant to Code of Civil Procedure section 1094.5; (3) Declaratory Relief; (4) Violation of Due Process and Equal Protection; (5) Breach of Contract; and (6) Breach of the Implied Covenant of Good Faith and Fair Dealing. Asset forth in detail below, Plaintiff Korman 1 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not only lacks standing to maintain this action, but each cause of action set forth in the Complaint fails to adequately allege a claim against the City. First, Korman lacks standing to bring the Complaint because Kormanis a foreign corporation that is not qualified to do business in California. As Plaintiffs should well know, an unqualified foreign corporation is not permitted to maintain an action in California, and claims brought by such an entity are properly subject to demurrer. As to Plaintiffs’ First and Second Causes of Action, Plaintiffs have failed to adequately allege any ministerial duty of the City that would support the issuance of a writ under section 1085. Plaintiffs also do not allege any ongoing issue related to the City’s acceptance and review of permits submitted by Plaintiffs that would necessitate a writ in this instance, and have pleaded the First and Second Causes of Action in such an uncertain mannerthat the City cannot reasonable respond to their allegations. Moreover, and perhaps most importantly, such claims are procedurally deficient, and properly subject to demurrer, because Plaintiffs have failed to file a verified petition for writ of mandate as required by Code of Civil Procedure section 1086. Plaintiffs’ Third Cause of Action for Declaratory Relief also fails to state a claim, and is improper. The allegations in the Third Cause of Action are identical to the claims upon which Plaintiffs base their First and Second Causes of Action for writs of mandate on the City’s administrative decisions. Declaratory relief claims, though, are not appropriate for review of administrative decisions. With regards to Plaintiffs’ Fourth Cause of Action for Violations of Due Process and Equal Protection, Plaintiffs have failed to state a claim because Plaintiffs do not allege that they were deprived of a federally protected or vested right, nor do they allege that the City’s actions were oppressive, abusive or legally irrational. Instead, Plaintiffs cite to wholly irrelevant portions of the Development Agreement, and assert a nebulous entitlement to equal protections and privileges entitled to them under the United States Constitution, without specifically identifying these protections and privileges. As to Plaintiffs’ Fifth Cause of Action for Breach of Contract, Plaintiffs have failed to adequately allege each element oftheir claim. Namely, the Complaint does not adequately allege 2 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that the City violated the development agreement because Plaintiffs do not contend that the City has taken any action that is inconsistent with the then “Current Land Use Regulations” or the “Project Approvals” under the development agreement, nor have Plaintiffs adequately alleged that the City prevented or adversely affected the operation of the Project in accordance with the then “Current Land Use Regulations”or the “Project Approvals.” Rather, the allegations show that the City merely interpreted a then-current definition of dwelling unit, and found that any such residential unit must be rented for an initial term of one year or more. These allegations do not set forth a breach of the development agreement. And, Plaintiffs’ allegations that the City delayed in accepting and processing permits does not set forth a breach because the Complaint does not allege that Plaintiffs suffered any damages due to the City’s purported delay, or that the delay is ongoing such that an order of specific performance would be warranted. Finally, Plaintiffs’ Sixth Cause of Action fails to state a claim against the City. First, Plaintiffs’ Sixth Cause of Action does nothing more than restate a breach of contract claim, is superfluous, and fails to allege a separate and distinct cause of action. Plaintiffs’ claim also lacks an essential element because Plaintiffs do not allege that the City failed to render its determination on the terms of the development agreement “in good faith.” Further,the relief sought in Plaintiffs’ Fourth, Fifth, and Sixth Causes of Action renders each of the claims uncertain because any such order would permit Plaintiffs to rent the dwelling units for 30 days orless, and Plaintiffs do not allege that rentals of 30 days or less would be proper under the WHMC or the development agreement. For the foregoing reasons, and as explained more fully below, the City’s Demurrer should be sustained in its entirety, without leave to amend. II. RELEVANT FACTUAL BACKGROUND A. The Development Agreement According to the Complaint, on or about December 20, 1999, the City entered into a written agreement with Sunset Millennium Associates, LLC (“Sunset Millennium”) entitled Development Agreement (the “Original Agreement”), relating to (among other things) the development and operation ofcertain real property located in West Hollywood, California (the 3 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Project”). (Compl., 99 15, 17, Exh. B.) The Project was described as the development of three parcels, designated as the West, Middle (which includes the Property) and East Parcels. (Compl., Exh. B.) In July 2005, the City and Sunset Millennium amended (and replaced in full) the Original Agreement pursuant to the Amended and Restated Development Agreement (as subsequently amended, modified and/or supplemented, the “Development Agreement”). (Compl., 9 15, Exh. B.) The Development Agreement allowed for the Property to include two residential buildings — the East and West Towers — with a total of 190 dwelling units’ to be condominiums. (Compl., Exh. B.) On April 11, 2012, Sunset Millennium’s successor-in-interest> submitted a request to the West Hollywood Department of Community Development to approve minor amendments to the development agreement (the “Minor Amendment”). (Compl, q 16.) In part, Sunset Millennium’s successor-in-interest sought to clarify that the development agreement permitted use of the residential condominiums (i.e., the Property) as residential apartments. (/d.) The Minor Amendment was approved on September 19, 2012. (/d.) B. BPREP’s Unapproved Use of the Property On June 26, 2017, BPREP purchased the Property and agreed to be subject to the same duties and obligations asits predecessor-in-interest arising under or from the Development Agreement. (Compl., 9 18; see also Exh. B [§ 6.12]; RIN, 9 1, Exh. A.) Plaintiffs allege in their Complaint that, after BPREP purchased the Property, various news articles were published addressing BPREP’s intended use of the Property, including a June 28, 2017 article in the Los Angeles Times that claimed BPREP would be operating the Property as a hotel. (Compl., 420.) Plaintiffs allege that the City provided false information to the news “Dwelling unit”is, and at all relevant times was, defined by the West Hollywood Municipal Code (“WHMC”) as “[a] room or group ofinternally connected rooms that have sleeping, cooking, eating, and sanitation facilities, but not more than one kitchen, which constitute an independent housekeeping unit, occupied by or intended for one household on a long-term basis.” WHMC § 19.90.020. 2 Pursuant to Section 6.12 of the Development Agreement, . . .the burdens and obligations of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement and all successors in interest to the [Project] or any portion thereof of [sic] any interest therein, and shall be covenants running with the land.” (Compl., Exh. B, § 6.12.) 4 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 media ofthis intention to operate a hotel on the Property, and that the information harmed BPREP’s reputation and interfered with BPREP’s “lawful and permitted” use of the Property. (Compl. 21.) After the articles were published, Plaintiffs allege that the City Manager wrote to BPREP, and stated that the dwelling units on the Property could not be used on a short-term basis. (Compl. 922.) Plaintiffs claim that they communicated with the City on multiple occasions following the City Manager's letter, allegedly to explain that the articles were false and that BPREP would not be operating a hotel on the Property, but would instead lease the dwelling units for terms of 31 days or more. (Compl., 923.) On November 29, 2017, the Director, after having received and considered numerous written communications from BPREP addressing the matter, issued the Zoning Interpretation. (Compl., 9 24; RIN, 9 2, Exh. B.) The Zoning Interpretation found (among other things) that “long-term basis” (as used in the WHMC definition of “dwelling unit”) means one year or more. (Id.) Thus, Plaintiffs would be permitted to operate the dwelling units on the Property for initial lease terms of one year or more. (/d.) Plaintiffs, however, claim that the City permits dwelling units to be rented for periods of 31 days or more, and that the Zoning Interpretation was erroneous. (Compl.,25-29.) The Zoning Interpretation also found (among other things) that BPREP’s planned use of the Property (a) constituted temporary lodging; (b) fell within the definition of “hotel” under the WHMC?; and (c) was therefore, not permitted within the Property approvals. (Compl., § 30; RIN, § 2, Exh. B.) Plaintiffs allege that the Property, under their management, does not offer the level of services that a hotel guest “would typically expect or require.” (Compl., 9 32-35.) 3 “Hotel”is, and at all relevant times, was defined by the WHMC as “[a] facility with guest rooms or suites, provided with or without meals or kitchen facilities, rented to the general public for overnight or other temporary lodging, typically less than 30 days. Also may include accessory guest facilities such as swimming pools, tennis courts, indoor athletic facilities, accessory retail uses, meeting facilities, etc.” WHMC § 19.90.020 5 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. BPREP Appeals the Zoning Interpretation and Proceeds with Its Unapproved Use of the Property BPREP appealed (the “PC Appeal”) the Zoning Interpretation to the West Hollywood Planning Commission (the “Planning Commission”). (Compl., § 36; RIN, § 3, Exh. C.) On April 19, 2018, the Planning Commission issued a resolution (a) denying the PC Appeal and upheld the Zoning Interpretation; and (b) finding on a de novo basis that, in contravention of the City’s zoning ordinance, the Development Agreement and the Property’s project entitlements, the market-rate (non-affordable) dwelling units located in the West Tower of the Property were (1) being used as a “hotel,” (2) not being rented on a “long-term basis” and/or (3) not being used as approved. (Id.) On April 27, 2018, BPREP appealed (the “Appeal”) the Planning Commission’s decision to the West Hollywood City Council (the “City Council”). (Compl., § 37, RIN, 94, Exh. D.) On September 4, 2018, the City Council issued a resolution (a) denying the Appeal and upheld the Planning Commission’s decision to uphold the Zoning Interpretation; and (b) finding on a de novo basis that, in contravention of the City’s zoning ordinance, the Development Agreement and the Property’s project entitlements, the market-rate (non-affordable) dwelling units located in the West Tower of the Property were (1) being used as a “hotel,” (2) not being rented on a “long-term basis” and/or (3) not being used as approved. (Compl. § 41; RIN, 94, Exh. D, pp. 1-5.) Plaintiffs allege that, on September 10, 2018, they filed a claim for damages with the City under Government Code section 905. (Compl., § 12; RIN,9 5, Exh. E.) Plaintiffs claim that the City Council’s decision has caused “significant financial and reputational harm to [BPREP], in an amount to be proven at or before trial, in excess of $40 million. . .” (Compl., § 44.) III. LEGAL ARGUMENT A. Legal Standard on Demurrer A general demurrer lies where the complaint itself is incomplete or discloses some defense, bar to recovery or fails to allege all required elements of a cause of action. Code Civ. Proc. §430.10(e); see also Cryolife, Inc. v. Sup. Ct. (2003) 110 Cal. App. 4th 1145, 1152; Casterson v. Sup. Ct. (2002) 101 Cal. App. 4th 177, 183; Holiday Matinee, Inc. v. Rambus (2004) 6 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 118 Cal. App. 4th 1413, 1421. A complaint that is uncertain, ambiguous, or unintelligible is also properly subject to demurrer. Code Civ. Proc. §430.10(f). When a complaintis successfully challenged by a general demurrer, the burden is on the plaintiff to demonstrate how the complaint might be amended to cure it of the defect. Association of Community Organizationsfor Reform Now v. Department ofIndustrial Relations (1995) 41 Cal. App. 4th 298, 302. Code of Civil Procedure section 430.10 also states, in relevant part, that a “party against whom a complaint or cross-complaint has been filed may object, by demurrer to the pleading on any one or more of the following grounds:. . .(b) plaintiff lacks standing. . .” and a special demurrer may be sustained on that basis. Code Civ. Proc. § 430.10(b). For the purpose oftesting the sufficiency of a cause of action, a demurrer admits the truth of all material facts properly pleaded. Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal. 4th 962, 966- 67. A demurrer challenges the defects that appear on the “face of the complaint,” including matters incorporated by reference, or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994; Frantz v. Blackwell (1987) 189 Cal. App. 3d 91, 94. Further, facts appearing in exhibits attached to complaints are accorded precedence over inconsistent allegations. Holland v. Morse Diesel Int’l, Inc. (2001) 86 Cal.App.4th 1443, 1447; Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal. App. 3d 1624, 1627 (“facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence”). B. Korman Lacks Standing to Bring Its Claims Because It Is Not Registered to Conduct Business in California “A foreign corporation shall not transact intrastate business without having first obtained from the Secretary of State a certificate of qualification.” Corp. Code § 2105(a). “The failure of a foreign corporation to qualify to transact business prior to commencing an action is a matter of abatement ofthe action.” United Medical Management Ltd. v. Gatto (1996) 49 Cal.App.4th 1732, 1740 [citing O'Connell Gold Mines, Ltd. v. Baker (1944) 63 Cal.App.2d 384, 389-390]. “Once a non-qualified foreign corporation commences an action regarding intrastate business, the 7 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defendant may assert by demurrer or as an affirmative defense in the answer the lack of capacity to maintain an action arising out ofintrastate business.” Id. Plaintiffs’ Complaint names both BPREP and Korman as Petitioners and Plaintiffs in the caption, and undeniably alleges claims related to business taking place within the state of California,i.e. operation of the Property in West Hollywood. (Compl.,4 13-44.) However, Korman is not registered to do business in California, and therefore cannot maintain the instant action. (RJN, 9 6, Exh. F.) Accordingly, to the extent that Korman purports to assert the claims in the Complaint against the City, the action must be abated and the City’s Demurrer sustained. C. Plaintiffs’ First and Second Causes of Action Fail to State a Claim A writ of mandate under CCP § 1085 “may be issued by any court ... 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(a). To be entitled to relief, the allegations contained in the petition must establish: (1) a clear and present ministerial duty of the respondent to do an act which the law specifically enjoins; (2) a substantial beneficial interest of the petitioner in the performance ofthat duty; and (3) no plain, speedy, and adequate remedy at law. Code Civ. Proc. § 1085; Flora Crane Service, Inc. v. Ross (1964) 61 Cal.2d 199, 203-04. A petition for administrative mandamus under CCP §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, evidenceis required to be taken and discretion in the determination of facts is vested in a public agency. Code Civ. Proc. §1094.5. In such cases, where a petitioner seeks a writ because there is no plain, speedy, or adequate remedy at law, the writ “must be issued upon the verified petition of the party beneficially interested.” Code Civ. Proc. § 1086; see also Townsel v. Superior Court (1999) 20 Cal. 4th 1084, 1088-89 [“[a]s with habeas corpus, the party seeking mandate relief makes application by filing a verified petition]; Berman v. City of W. Hollywood Rent Stabilization Dep't (1988) 197 Cal. App. 3d 837 [seeking a writ under Section 1094.5 pursuant to a verified first amended complaint]. 8 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 With regard to the First Cause of Action under Section 1085, the duty at issue must be obligatory rather than merely discretionary or permissive; it must require a public officer to perform an act “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 Dist. (2003) 29 Cal.4th 911, 916. Here, the Complaint fails to identify any ministerial duty of the City that would support the issuance of a writ under section 1085. Instead, the Complaint asserts that the City Council abusedits discretion in reaching the City Decision. (Compl., 946-50.) This argumentis defective for two reasons: (1) no state or local law mandates the City to interpretits zoning code in any particular manner; and (2) reaching the City Decision is by its nature a discretionary, legislative function, not a duty performed without the exercise of independent judgment or opinion as required for a writ issued pursuant to CCP §1085. A writ of mandate may not be used to compel or prohibit legislative acts, or to otherwise control the discretion conferred upon a public officer or agency, as the petition/complaint requests. Tailfeather v. Board ofSupervisors (1996) 48 Cal.App.4th 1223, 1244. Moreover, the City’s interpretation of its zoning ordinance decision carries with it a strong presumption of regularity and is therefore entitled to great deference. To the extent that Plaintiffs allege the City failed to carry out its duties to “accept and review the applications for permits pertaining to the common areas of the Project in the manner required by law” (Compl., 99 53-55), these allegations do not constitute a cognizable claim for a writ of mandate under Section 1085 because Plaintiffs do not allege that the City had a mandatory, ministerial duty to issue those permits. Plaintiffs also do not allege any ongoing issue related to the acceptance and review of permits that would necessitate a writ in this instance. (Compl., 9 51-58.) As such, Plaintiffs’ Complaint fails to state the requisite elements for a claim under Section 1085. Plaintiffs’ First Cause of Action is also uncertain. BPREP alleges that the City “adopted, implemented, and enforced an illegal decision to prevent [BPREP] from using the Property in the 9 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 planned, lawful, and agreed upon manner[,]” but does not explain what the purported ‘planned’ manner was. (Compl., 947, 49, 50.) As currently pleaded, the City cannot respond to this uncertain allegation. Plaintiffs’ Second Cause of Action lacks certainty on the same bases, and is properly subject to demurrer for that reason. (Compl., 9 61-64.) Most significantly, as to both the First and Second Causes of Action, Plaintiffs’ Complaint fails to state viable claims because the Complaint is not verified. As explained in Code of Civil Section 1086, a writ can only issue “where there is not a plain, speedy, and adequate remedy, in the ordinary course of law,” and shall be issued “upon the verified petition of the party beneficially interested.” (emphasis added.) Plaintiffs’ failure to verify the Complaint renders these claims deficient. Accordingly, the City’s Demurrer must be sustained as to the First and Second Causes of Action. D. Plaintiffs’ Third Cause of Action for Declaratory Relief Fails to State a Claim and is Improper “It is settled that an action for declaratory relief is not appropriate to review an administrative decision.” State of California v. Superior Court (1974) 12 Cal.3d 237, 249; see also Tejon Real Estate, LLC v. City ofLos Angeles (2014) 223 Cal. App. 4th 149, 155 [*“‘[a] declaratory relief action is an appropriate method for obtaining a declaration that a statute or regulation is facially unconstitutional,” but administrative mandamus is ‘the proper and sole 299 299remedy’ where a local agency's application of the law at issue. .””’]. For example, courts have specifically held that “‘the proper method to challenge the validity of conditions imposed on a building permit is administrative mandamus under Code of Civil Procedure section 1094.5.”” Rezai v. City of Tustin (1994) 26 Cal.App.4th 443, 448, quoting City ofSantee v. Superior Court (1991) 228 Cal.App.3d 713, 718. In the Complaint, Plaintiffs allege that the City violated its rights “by adopting, implementing, and enforcing the illegal decision, including but not limited to by adopting the City Council’s Decision, and by refusing for many months to accept and process permit applications in the manner required by law.” (Compl., 4 75.) These allegations are identicalto the claims upon which Plaintiffs base their First and Second Causes of Action for writs of mandate on the City’s 10 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 administrative decisions. (See Compl., 4945-72.) Plaintiffs’ Third Cause of Action is therefore improper because declaratory relief claims are not appropriate for review of administrative decisions, and the Court should sustain the City’s Demurrer as to the Third Cause of Action. E. Plaintiffs’ Fourth Cause of Action for Violations of Due Process Rights Fails to State a Claim “By the plain terms of § 1983, [two] allegations are required in order to state a cause of action underthat statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him ofthat right acted under color ofstate or territorial law.” Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 890. However, a plaintiff seeking recovery under section 1983 must plead more than constitutional "buzzwords" to survive demurrer. Burchett v. City ofNewport Beach (1995) 33 Cal. App. 4th 1472, 1481. The plaintiff must allege specific and nonconclusory facts showing the defendant's acts deprived him of a right, privilege or immunity secured by the federal Constitution or federal laws. Duffy v. City ofLong Beach (1988) 201 Cal. App. 3d 1352, 1360. The complaint must also allege facts showing the agency's action was oppressive, abusive or legally irrational because it was not sufficiently related to any legitimate state interest. Stubblefield Construction Co. v. City ofSan Bernardino (1995) 32 Cal. App. 4th 687, 709-710. Here, Plaintiffs have not adequately alleged a claim under Section 1983 because (a) Plaintiffs were not deprived of a federally protected or vested right; and (b) Plaintiffs have not adequately pleaded that the City’s actions were oppressive, abusive or legally irrational. Based upon the allegations in the Complaint and the attached documents, it appears that Plaintiffs were and are still permitted to operate the dwelling units as condominiums or apartment units for lease of one year or more under the terms of the Development Agreement, and the City never deprived them ofthe right to use the Property in accordance with zoning requirements and the Development Agreementitself. (Compl. 9 13-44.) Moreover, Plaintiffs fail to allege the deprivation of any vested right. Specifically, Plaintiffs cite to Section 3.1.2 of the Development Agreement as providing them with a “vested right as of July 11, 2005.” (Compl., 4 82.) However, Section 3.1.2 only provides the owner of 11 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Property with a vested right “so as to prevent or materially adversely affect development or construction of the Project in accordance with the Current Land Use Regulations or the Project Approvals.” (Compl., Exh. B, § 3.1.2.) This Section is inapplicable to Plaintiffs’ operation and use of the Property, including any purported failure or delay in accepting and processing permits related to Plaintiffs’ operation and use of the Property. (Compl., 49 83-84.) At no point in the Complaint do Plaintiffs allege that the City impacted their development or construction ofthe Property because Plaintiffs did not undertake either of these tasks. Furthermore, Plaintiffs’ allegations are not sufficient to show oppression, abusive conduct, or legal irrationality. Courts will not consider incompetent or conclusory allegations in its assessment of the adequately of Plaintiffs’ pleadings. Breneric Associates v. City ofDel Mar (1998) 69 Cal.App.4th 166, 184 [incompetent and conclusory allegations regarding oppression, abuse or legal irrationality ignored]. Without any support for the statements, Plaintiffs allege that the City instructed Mr. Keho to issue a determination that the planned use of the Property was not permitted (Compl., 9 24); and that the city council’s motion regarding the Property was arbitrary and capricious (id., 9 42). These allegations do notrise to the level of oppression, abusive conduct or legal irrationality, and are conclusory and baseless. Plaintiff’s Fourth Cause of Action is also uncertain. The relief sought by Plaintiffs in the form of a permanent injunction requiring the City to allow BPREP to “lease units for fewer than 365 days” renders the Fourth Cause of Action uncertain because any such order would permit Plaintiffs to rent the dwelling units for 30 days or less, and Plaintiffs do not allege that rentals of 30 days or less would be proper under the WHMC or the Development Agreement. (Compl., 85.) Accordingly, the Court should sustain the City’s Demurrer as to Plaintiffs’ Fourth Cause of Action for Violation of Due Process and Equal Protection. F. Plaintiffs’ Fifth Cause of Action for Breach of Contract Fails to State a Claim “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the 12 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defendant’s breach, and (4) the resulting damage to the plaintiff.” Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186. Plaintiffs’ Fifth Cause of Action failsto state a claim because it does not adequately allege that the City has taken any action that is inconsistent with the then “Current Land Use Regulations” or the Project Approvals under the Development Agreement, nor have Plaintiffs adequately alleged that the City prevented or adversely affected the operation of the Project in accordance with the then “Current Land Use Regulations” or the Project Approvals. (Compl., 9 87-99.) As alleged in the Complaint, the Development Agreement provides for the development and operation of 190 “dwelling units” on the Property. (Compl., Exh. B.) Section 3.1.1 also provides, in relevant part, that the City shall not “apply to the Property or the Project any new or amended ordinance, resolution, rule, regulation, requirement or official policy that is inconsistent with the [then] Current Land Use Regulations or the Project Approvals, so as to. . . ‘prevent or adversely affect the operation of the Project’, in accordance with the [then] Current Land Use Regulations or the Project Approvals...” (Compl., § 88; Exh. B, § 3.1.1.) In this instance, the City Decision found (among other things) that, although not defined in the WHMC,the phrase “long-term basis” as used in the definition of “dwelling unit” means “one year or more” and, therefore, operation of the dwelling units for less than one year is not permitted within the Property approvals. (Compl., 425.) Accordingly, a dwelling unit must be operated on a “long-term basis,”i.e., one year or more, and cannot be rented for 31 days or more (butless than one year). (Id.) The City Decision also found (among other things) that BPREP’s planned use of the Property fell within the definition of “hotel” under the WHMC and was, therefore, not permitted within the Property approvals. (Compl., 9 30.) These allegations do not demonstrate a breach of Section 3.1.1 of the Development Agreement. Plaintiffs do not allege in the Complaint that the City has applied any new or amended ordinance, resolution, rule, regulation, requirement or official policy to the Property that is inconsistent with the [then] “Current Land Use Regulations” or the Project Approvals. Rather, Plaintiffs’ allegations show that the City merely interpreted the applicable definition of “dwelling 13 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unit” in the WHMC in order to assess whether Plaintiffs’ proffered use of the Property violated the WHMC or the Development Agreement.* In addition, Plaintiffs’ allegations that the City delayed in accepting and processing permits cannot support their claim for breach of contract because the Complaint does not allege that Plaintiffs suffered any damages due to the City’s purported delay, or that the delay is ongoing such that an order of specific performance would be warranted. (Compl., 99 79-85.) Plaintiffs have therefore failed to state a claim for breach of the Development Agreement. Moreover, Plaintiffs’ Fifth Cause of Action is uncertain. Plaintiffs fail to identify which obligations BPREP allegedly complied with under the Development Agreement, and which alleged “obligations” the City must comply with undertheir requested order for specific performance. (Compl., 998-99.) The relief sought by Plaintiffs in the form of an order requiring the City to allow BPREP to “offer its units for fewer than 365 days” renders the Fifth Cause of Action uncertain because any such order would permit Plaintiffs to rent the dwelling units for 30 days or less, and Plaintiffs do not allege that rentals of 30 days or less would be proper under the WHMC or the Development Agreement. (Compl., 999.) As such, Plaintiffs’ Fifth Cause of Action for Breach of Contract fails to state a claim, is uncertain, and should be dismissed. Accordingly, the City’s Demurrer to Plaintiffs’ Fifth Cause of Action should be sustained. G. Plaintiffs’ Sixth Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing Fails to State a Claim “The implied covenant of good faith and fair dealing rests upon the existence of some specific contractual obligation. ‘The covenant of good faith is read into contracts in order to protect the express covenants or promises of the contract, not to protect some general public policy interest not directly tied to the contract’s purpose.’ . . ‘In essence, the covenant is implied 29 <¢4 Plaintiffs’ allegations concerning the WHMC definitions of “corporate housing,” “emergency shelter,” and “transitional housing” are irrelevantto the claims in the Complaint, and properly subject to a motion to strike, because the Zoning Interpretation did not apply these definitions in any manner that would implicate Section 3.1.1 of the Development Agreement. (RIN, § 2, Exh. B.) Moreover, Plaintiffs do not allege that these definition are inconsistent with the [then] “Current Land Use Regulations” or the Project Approvals — a requirement under Section 3.1.1. 14 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates 299the other party’s rights to the benefits of the contract.”” Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031-1032. If a claim for breach of the implied covenant does nothing more than allege a mere contract breach and, relying on the same alleged acts, simply seeks the same damages or other relief already claimed in a contract cause of action, it may be disregarded as superfluous because no additional claim is actually stated. Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395. With their Sixth Cause of Action, Plaintiffs allege that the City breached the implied covenant of good faith and fair dealing by “(a) erroneously concluding that the Property’s intended use is impermissible unless its units are rented for one year or longer; and (b) erroneously concluding that the Property ‘is being operated as a hotel.”” (Compl., § 102.) These allegations are insufficient to adequately plead a claim for breach of the covenant of good faith and fair dealing. First, Plaintiffs’ Sixth Cause of Action does nothing more than restate a breach of contract claim, and seeks identical relief to that set forth in Plaintiffs’ Fifth Cause of Action. (Compare Compl., 99 86-99 and 99 100-103.) Plaintiffs’ Sixth Cause of Action is merely superfluous and fails to allege a separate and distinct cause of action. Careau & Co. v. Security Business Credit, Inc. (1990) 222 Cal.App.3d at 1395. Second, Plaintiffs’ claim lacks an essential element because Plaintiffs do not allege that the City failed to renderits determination on the terms of the Development Agreement “in good faith.” (Compl, 4 101-103.) Although Plaintiffs believe the decision to have been erroneous, there are no claims that the Director, Planning Commission, or City Council failed to reach their decisions in good faith, and therefore Plaintiffs have failed to adequately allege the Sixth Cause of Action Finally, Plaintiffs’ Sixth Cause of Action is uncertain. Plaintiffs allege that the City has breached the implied covenant of good faith and fair dealing in its “contracts” with BPREP, but only allege conduct amounting to breach of a single contract — the Development Agreement. 15 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Compl. 9 102.) Plaintiffs fail to identify any additional contracts. Plaintiffs’ allegations are also rendered woefully uncertain due to their use of the language “including, but not limited to” in the Sixth Cause of Action. (Id. at In. 23.) Plaintiffs’ failure to plead all bases upon which it claims the City breached the implied covenant of good faith and fair dealing make it impossible for the City to defend against the allegations therein. Plaintiffs also fail to identify which obligations the City failed to comply with under the Development Agreement, and seek relief in the form of an order requiring the City to allow BPREP to “offerits units for fewer than 365 days”that renders the Sixth Cause of Action uncertain because any such order would permit Plaintiffs to rent the dwelling units for 30 days or less, and Plaintiffs do not allege that rentals of 30 days or less would be proper under the WHMC or the Development Agreement. (Compl., 9 103.) Accordingly, Plaintiffs have failed to plead a claim for breach of the covenant of good faith and fair dealing, and the City’s Demurrer should be sustained. H. The City’s Demurrer Should be Sustained Without Leave to Amend A court may sustain a demurrer without leave to amend where there is no reasonable possibility that the plaintiff can cure the defects in pleading by amendment. Fox v. Ehicon Endo- Surgery, Inc. (2005) 35 Cal.4th 797, 810 (quoting Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967). As explained in detail above, Plaintiffs’ Complaint suffers from such fundamental defects in each cause of action that amendment would be futile. Accordingly, the City’s Demurrer should be sustained without leave to amend. 11 11 11 16 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION For the foregoing reasons, the City respectfully requests that the Court sustain this Demurrer, and award such further relief as the Court deems just and proper. Because any effort to amend the Complaint would be futile, the Court should sustain the Demurrer without leave to amend, and dismiss the action with prejudice. Respectfully submitted, Dated: December 13, 2018 BAKER & HOSTETLER LLP By: /s/ Elizabeth M. Treckler Michael R. Matthias Elizabeth M. Treckler Attorneys for Respondent and Defendant CITY OF WEST HOLLYWOOD 17 RESPONDENT AND DEFENDANT CITY OF WEST HOLLYWOOD’S NOTICE OF DEMURRER AND DEMURRERTO PETITIONERS AND PLAINTIFFS’ COMBINED PETITION AND COMPLAINT; CASE NO. BS175183 Make a Reservation | e-Delivery Project 12/13/2018 Journal Technologies Court Portal Make a Reservation BPREP 8500 SUNSET LLC ET ALVS CITY OF WEST HOLLYWOOD Case Number: BS175183 Case Type: Civil Unlimited Category: Other Civil Petition Date Filed: 2018-09- 26 Location: Stanley Mosk Courthouse - Department 71 Reservation Case Name: BPREP 8500 SUNSET LLC ET ALVS CITY OF WEST Case Number: HOLLYWOOD BS175183 Type: Status: Demurrer - with Motion to Strike (CCP 430.10) RESERVED Party: Location: West Hollywood, City of (Defendant) Stanley Mosk Courthouse - Department 71 Date/Time: Number of Motions: 02/22/2019 8:30 AM 1 Reservation ID: Confirmation Code: 117102613770 CR-YVLAIWLTOENQHBZPT Fees Description Fee Qty Amount Demurrer - with Motion to Strike (CCP 430.10) 120.00 1 120.00 Credit Card Percentage Fee (2.75%) 3.30 1 3.30 TOTAL $123.30 Payment Amount: Type: $123.30 Visa Account Number: Authorization: XXXX7995 00001C = Print Receipt = Reserve Another Hearin 1 12/13/2018 Make a Reservation | e-Delivery Project 12/13/2018 Copyright © Journal Technologies, USA. 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