Demurrer in SAVE RANCHO PROVIDENCIA NEIGHBORHOOD, AN UNINCORPORATED ASSOCIATION VS CITY OF BURBANK, A MUNICIPAL CORPORATION| Trellis.Law

On June 23, 2021 a Party Notice was filed involving a dispute between Save Rancho Providencia Neighborhood An Unincorporated Association, and City Of Burbank A Municipal Corporation, for Other Writ /Judicial Review (General Jurisdiction) in the District Court of Los Angeles County.

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Electronically FILED by Superior Court of California, County of Los Angeles on 06/01/2022 02:50 PM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk

1 JILL A. VANDER BORGHT, SR. ASST. CITY ATTY. FILING FEE EXEMPT
State Bar No. 240004 PURSUANT TO GOV. CODE § 6103
2 ASHLEE P. CLARK, SR. ASST. CITY ATTY.
State Bar No. 278672
3 JOSEPH MCDOUGALL, CITY ATTORNEY
State Bar No. 197689
4 275 E. Olive Avenue
Burbank, CA 91502
5 Tel.: (818) 238-5707
Fax: (818) 238-5724
6 Email: JVanderBorght@burbankca.gov
Attorneys for Defendant CITY OF BURBANK
7

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF LOS ANGELES – CENTRAL DISTRICT
10

11 SAVE RANCHO PROVIDENCIA ) Case No.: 21STCP02000
NEIGHBORHOOD, an unincorporated )
12 association; ) RESPONDENT CITY OF BURBANK
) NOTICE OF DEMURRER AND
13 Petitioner, ) DEMURRER TO PETITIONER’S
) VERIFIED SECOND AMENDED
14 v. ) PETITION FOR WRIT OF MANDATE;
) MEMORANDUM OF POINTS AND
15 CITY OF BURBANK, a municipal ) AUTHORITIES IN SUPPORT THEREOF
corporation; and ROES 1-10, )
16 )
Respondent. ) Assigned to the Hon. Mitchell L. Beckloff
17 ) Stanley Mosk Courthouse, Department 86
)
18 ) HEARING
RAISING CANE’S RESTAURANTS, L.L.C.; ) Date: August 19, 2022
19 ROES 11-20 ) Time: 9:30 a.m.
)
20 Real Parties in Interest. )
) Complaint Filed: June 23, 2021
21 )
)
22

23 NOTICE OF DEMURRER

24 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

25 PLEASE TAKE NOTICE that on August 19, 2022, at 9:30 a.m., or as soon thereafter as

26 the matter may be heard, in Department 86 of the Los Angeles County Superior Court, located at

27 111 North Hill Street, Los Angeles, CA 90012, Respondent City of Burbank (the “City”) will

28 and hereby does demur to the Verified Second Amended Petition (“SAP”) for Writ of Mandate
1
RESPONDENT CITY OF BURBANK’S NOTICE OF DEMURRER AND DEMURRER TO SECOND
AMENDED PETITION
1 filed by Petitioner SAVE RANCHO PROVIDENCIA NEIGHBORHOOD (“Petitioner”) against

2 Respondent CITY OF BURBANK.

3 As described in the Declaration of Jill Vander Borght, counsel for the parties met and

4 conferred on May 24, 2022, pursuant to Code of Civil Procedure section 430.41, in an effort to

5 avoid the need for this Demurrer but were unable to reach an agreement. This Demurrer is based

6 on this Notice of Demurrer and Demurrer, the attached Memorandum of Points and Authorities,

7 the concurrently filed Request for Judicial Notice, the record and documents on file in this

8 matter, and any other matter properly before the Court at the time of the hearing.

9 DATED: June 1, 2022
10 Respectfully submitted,
City Attorney’s Office of the City of Burbank
11

14 By:
Jill A. Vander Borght
15 Senior Assistant City Attorney
Attorney for Respondent
16 CITY OF BURBANK
17

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2
RESPONDENT CITY OF BURBANK’S NOTICE OF DEMURRER AND DEMURRER TO SECOND
AMENDED PETITION
1 DEMURRER

2 The City demurs to the first cause of action on the ground that claims alleging City

3 noncompliance with the Burbank Municipal Code in issuing a certificate of occupancy despite

4 “excessive demolition” fail to state facts sufficient to constitute a cause of action. Petitioner may

5 not insert its own analysis for the City’s inspection and enforcement authority, and Petitioner

6 makes no allegations that the City failed to perform inspections. The City demurs to the second

7 cause of action on the ground that it fails to state facts sufficient to constitute a cause of action as

8 Petitioner lacks standing to assert the cause of action and it is barred by the statute of limitations.

9 Based on the foregoing, the Petition fails to adequately identify a basis for any writ relief.
10 WHEREFORE, the City prays as follows:
11 1. The Demurrer be sustained without leave to amend;
12 2. The Second Amended Petition be dismissed with prejudice;
13 3. For an award of attorneys’ costs as the prevailing party and attorneys’ fees as
14 permissible under law; and
15 4. For such other relief that this Court may deem just and proper.
16 DATED: June 1, 2022
17 Respectfully submitted,
City Attorney’s Office of the City of Burbank
18

21 By:
Jill A. Vander Borght
22 Senior Assistant City Attorney
Attorney for Respondent
23 CITY OF BURBANK
24

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3
RESPONDENT CITY OF BURBANK’S NOTICE OF DEMURRER AND DEMURRER TO SECOND
AMENDED PETITION
1 TABLE OF CONTENTS

2 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 7

3 I. INTRODUCTION .............................................................................................................. 7

4 II. FACTUAL BACKGROUND ............................................................................................. 8

5 A. Relevant Project and Permitting History ................................................................ 8

6 B. Procedural History .................................................................................................. 8

7 III. STANDARD OF REVIEW ................................................................................................ 9

8 IV. ARGUMENT ...................................................................................................................... 9

9 A. There Is No Basis For Mandamus Relief, The City Fulfilled Its Legal Duty. ........ 9
10 B. The Second Cause of Action Is Deficient and Should Be Dismissed................... 13

11 V. CONCLUSION ................................................................................................................. 15

28
4
RESPONDENT CITY OF BURBANK’S NOTICE OF DEMURRER AND DEMURRER TO SECOND
AMENDED PETITION
1 TABLE OF AUTHORITIES

2 Page(s)

3
Cases
4

5 AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health,

6 (2011) 197 Cal.App.4th 693 ..................................................................................................... 12

7 Blank v. Kirwan,

8 (1985) 39 Cal.3d 311 .................................................................................................................. 9

9 Blankenship v. Michalski,
10 (1957) 155 Cal.App.2d 672 ...................................................................................................... 12
11 Center for Biological Diversity v. Department of Conservation,
12 (2018) 26 Cal.App.5th 161 ....................................................................................................... 11
13 Citizens for Odor Nuisance Abatement v. City of San Diego,
14 (2017) 8 Cal.App.5th 350 ......................................................................................................... 11
15 Duggal v. G.E. Capital Communications Services, Inc.,
16 (2000) 81 Cal.App.4th 81 ........................................................................................................... 9
17 Lockyer v. City and County of San Francisco,
18 (2004) 33 Cal.4th 1055 ............................................................................................................. 10
19 Marquez v. State Dept. of Health Care Services,
20 (2015) 240 Cal.App.4th 87 ....................................................................................................... 12
21 Mendez v. Rancho Valencia Resort Partners, LLC,
22 (2016) 3 Cal.App.5th 248 ......................................................................................................... 13
23 Riggs v. City of Oxnard,
24 (1984) 154 Cal.App.3d 526 ...................................................................................................... 12
25 Tarmann v. State Farm Mut. Auto. Ins. Co.,
26 (1991) 2 Cal.App.4th 153 ......................................................................................................... 14
27 Thompson v. City of Lake Elsinore,
28 (1993) 18 Cal.App.4th 49 ......................................................................................................... 13
5
RESPONDENT CITY OF BURBANK’S NOTICE OF DEMURRER AND DEMURRER TO SECOND
AMENDED PETITION
1 Tindell v. Murphy,

2 (2018) 22 Cal.App.5th 1239 ..................................................................................................... 14

3 Vallejo Police Officers Assn. v. City of Vallejo,

4 (2017) 15 Cal.App.5th 601 ....................................................................................................... 12

5
Statutes
6

7 Code of Civil Procedure section 1085 .......................................................................................... 11

8 Code of Civil Procedure section 430.41 ......................................................................................... 2

9 Gov. Code §§ 818.4, 818.6, 821.2 ................................................................................................ 12
10 Government Code section 65009 .................................................................................................... 6
11 Government Code section 65009(c)(1)(E).................................................................................... 13
12

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6
RESPONDENT CITY OF BURBANK’S NOTICE OF DEMURRER AND DEMURRER TO SECOND
AMENDED PETITION
1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3 Petitioner is a neighborhood association that seeks to force the City and Real Party

4 Raising Cane’s Restaurant (“Raising Cane’s”) into the conditional use permitting process by way

5 of this lawsuit. Both the Petition and First Amended Petition challenged the zoning

6 determinations made by the City in issuing the December 16, 2020 building permits for the

7 project; challenges which the Court ruled were time-barred by Government Code section 65009.

8 As an attempted workaround, the Second Amended Petition (“SAP”) claims that despite the

9 validly issued building permits, the subsequent inspection process and issuance of a Certificate
10 of Occupancy for the Raising Cane’s Project pursuant to the permits was in violation of the
11 California Building Code and Burbank Municipal Code.
12 Petitioner’s first cause of action against the City fails to allege facts sufficient to state a
13 claim for mandamus relief for two reasons. First, there is no duty required of the City that the
14 Court can compel by way of this Writ. The City building inspectors inspected the project as
15 required by law, no citations were issued to Raising Cane’s, and a City building official
16 determined a certificate of occupancy should issue. It is the City’s responsibility to ensure
17 development complies with its zoning provisions and relevant building permits. Petitioner
18 improperly attempts to insert itself into this analysis after-the-fact, by way of photos and a
19 commissioned report. Petitioner’s unsupported allegations, however, may not be substituted for
20 the City’s; indeed, building inspection and code enforcement are regulatory functions exclusive
21 to the City. Second, the relief sought – to “rescind the Certificate of Occupancy until Real Party
22 has obtained a conditional use permit pursuant to BMC Sections 10-1-1609(D) and 10-1-
23 1151(F)” (SAP at p. 12) – is not available. Rather, it demonstrates the true nature of the
24 Petitioner’s interests, and suggests the dearth of legal and factual support for the instant claims.
25 The second cause of action against Raising Cane’s is similarly deficient. The City’s Demurrer
26 should be sustained with prejudice and with no further leave to amend.
27

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RESPONDENT CITY OF BURBANK’S NOTICE OF DEMURRER AND DEMURRER TO SECOND
AMENDED PETITION
1 II. FACTUAL BACKGROUND

2 A. Relevant Project and Permitting History

3 In December 2020, the City issued building permits to Raising Cane’s, which

4 authorized improvements to an existing building located at 1750 W. Olive Avenue (the

5 “Property”) for use as a drive-through restaurant. (Request for Judicial Notice [“RJN”], Ex. A, at

6 p. 1; see also Second Amended Petition (“SAP”), at ¶ 13.) In issuing the building permits, the

7 City conducted an analysis under BMC § 10-1-1810 (3) & (4) and determined that the Project’s

8 nonconforming aspects could remain because the extent of demolition was less than 50% of the

9 existing building. (SAP at ¶ 18.)
10 Raising Cane’s subsequently commenced construction of the Project pursuant to the
11 building permits. (SAP at ¶ 13.) The SAP is silent as to the regular and consistent inspections
12 leading up to issuance of the Certificate of Occupancy, and never suggests the City issued any
13 enforcement warnings or violations to Raising Cane’s. In fact, City inspectors regularly visited
14 the Project site during construction and confirmed that Raising Cane’s demolition did not exceed
15 that which was identified in the final approved plans. (Takiguchi Decl., at ¶ 18; Dep. of Mark
16 Sauceda at pp. 36:3-5, 46:4-5, 60:9-10, 60:21-22, 81:1-10, 85:14-24, 86:3-23.) After the building
17 official inspects a structure and does not find violations, the building official shall issue a
18 Certificate of Occupancy. (SAP at ¶ 15; Cal. Building Code § 111.2, emphasis added.) On April
19 14, 2022, the City issued a Certificate of Occupancy for the Project. (SAP at ¶ 15.)
20 B. Procedural History
21 Petitioner filed its original petition for writ of mandate on June 23, 2021. On August 9,
22 2021, Petitioner filed a motion for preliminary injunction, which the Court denied on October 8,
23 2021, finding that Petitioner was not likely to succeed on the merits of its claim and that the
24 balance of harms weighed in Raising Cane’s favor. On August 17, 2021, Raising Cane’s and the
25 City demurred to the original petition, arguing that all causes of action were barred by the statute
26 of limitations. Rather than oppose the demurrers, on the date its opposition was due, Petitioner
27 filed its Amended Petition. The Amended Petition did not raise any new causes of action, but
28 rather included irrelevant post-approval allegations regarding Project construction unrelated to
8
RESPONDENT CITY OF BURBANK’S NOTICE OF DEMURRER AND DEMURRER TO SECOND
AMENDED PETITION
1 the City’s zoning clearances and issuance of the Building Permits. On April 11, 2022, the Court

2 found the causes of actions challenging the building permits were barred by the statute of

3 limitations, struck any remaining allegations, and allowed for a second amendment.

4 On May 2, 2022, Petitioner filed the SAP, which alleges two causes of action: First, for

5 alleged improper issuance of certificate of occupancy due to excessive demolition against the

6 City. Second, for alleged fraudulent inducement to issue permits as to Raising Cane’s. Again, as

7 in all previous iterations of the petition, Petitioner seeks a writ of mandate ordering Respondent

8 to rescind its authorizations (here the Certificate of Occupancy) to Raising Cane’s until it has

9 obtained a conditional use permit. (SAP at Prayer, ¶ 1; Amended Petition at Prayer, ¶ 1; Petition
10 at Prayer, ¶ 1.)
11 III. STANDARD OF REVIEW
12 In reviewing a demurrer, the Court may treat the demurrer as admitting all material facts
13 properly pleaded. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) However, the Court should not
14 “assume the truth of contentions, deductions or conclusions of fact or law and may disregard
15 allegations that are contrary to the law or to a fact of which judicial notice may be taken.”
16 (Duggal v. G.E. Capital Communications Services, Inc. (2000) 81 Cal.App.4th 81, 86.)
17 IV. ARGUMENT
18 A. There Is No Basis For Mandamus Relief, The City Fulfilled Its Legal Duty.
19 Petitioner’s first cause of action seeks to set aside the Certificate of Occupancy, claiming
20 the City “incorrectly verified” that Project demolition complied with the Building Permits issued
21 pursuant to Zoning Code section 10-1-1810(4) and that the Certificate of Occupancy is, therefore
22 “void” and “in conflict” with the Zoning Code. Substantively, Petitioner second-guesses the
23 City’s on-site inspections through its own after-the-fact analysis, and challenges the City’s
24 determination that Project development complied with the Building Permits. Petitioner may not
25 do so; the first cause of action should be dismissed.
26 To obtain writ relief a petitioner must show: “‘(1) A clear, present and usually ministerial
27 duty on the part of the respondent…; and (2) a clear, present and beneficial right in the petitioner
28 to the performance of that duty, and (3) ‘the lack of any plain, speedy and adequate remedy in
9
RESPONDENT CITY OF BURBANK’S NOTICE OF DEMURRER AND DEMURRER TO SECOND
AMENDED PETITION
1 the usual course of law. (Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055,

2 1121.)

3 The first cause of action against the City fails to state facts sufficient to state a cause of

4 action for mandamus relief. There is no clear, present and ministerial duty that is yet unfulfilled

5 on the part of the City at issue in this lawsuit. The SAP alleges “the City’s issuance of the

6 Certificate of Occupancy required a determination that the Project complied with all applicable

7 ordinances pursuant to” California Building Code section 111.2 and Burbank Municipal Code

8 section 10-1-404-B. (SAP at ¶ 24, emphasis added.) The SAP further alleges that on April 14,

9 2022, the City issued a Certificate of Occupancy for the Project, which presumes such a
10 determination was made. (SAP at ¶ 15.) On the face of these allegations, the City plainly fulfilled
11 this duty and has performed all that it was required to do under the law. The instant Demurrer
12 should be sustained on this basis, with prejudice, as no further City action can be compelled.
13 Further, the cause of action ignores a well-established discovery record in this case
14 regarding project demolition and inspection and fails to acknowledge that the City has exclusive
15 responsibility to conduct such inspections and ensure the development complies with its zoning
16 ordinances and the building permits issued to the applicant. Petitioner does not allege the City
17 failed to inspect the project or failed to determine that the project complied with the permits and
18 the law. Instead, the Petitioner disagrees with the manner in which the City discharged its duty,
19 relying on Ms. Offenhauser’s after-the-fact analysis to purportedly demonstrate the City’s on-site
20 determinations were “incorrect.” Petitioner does not actually plead that the City failed to
21 discharge a ministerial duty. (SAP at p. 10.) Petitioner’s allegations fail to acknowledge the
22 City’s regular and consistent site visits and an inspection record without violations issued to
23 Raising Cane’s.
24 The SAP’s first cause of action merely sets out to undermine the City’s building
25 inspector, who fulfilled the duty to inspect and certify the project, by asserting that the issuance
26 of the Certificate of Occupancy “violated the BMC” not because the City official failed to
27 perform his duty, but because “Real Party demolished more of the foundation than authorized by
28 the Building Permit thereby requiring a Conditional Use Permit for a new drive-through.” (SAP
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RESPONDENT CITY OF BURBANK’S NOTICE OF DEMURRER AND DEMURRER TO SECOND
AMENDED PETITION
1 at ¶ 24.) The SAP continues both to revisit the initial City planning analysis performed prior to

2 issuance of the permits (SAP at ¶¶ 25-26), which is time-barred, and then attempts to undermine

3 this analysis with allegations of wrongdoing by Raising Cane’s (“Real Party demolished vast

4 portions…which were to remain per the plans,” SAP at ¶ 27), ultimately inserting its own

5 conflicting analysis (SAP at ¶¶ 28-29). The SAP plainly attempts to force the City building

6 inspector to make a particular determination rather than compel it to perform a duty at all.

7 Finally, the SAP disregards aspects of Burbank Municipal Code section 10-1-1810,

8 which expressly authorize deviations from the approved plans for public safety. (See BMC § 10-

9 1-1810 – “[n]othing in this section shall be deemed to prevent the strengthening or restoring to a
10 safe condition of any building or part thereof declared to be unsafe”].) Petitioner makes no
11 assertions (nor can it) regarding any such safety analysis in the SAP. Burbank Municipal Code
12 sections 10-1-404 and 10-1-406, provide the Building Director and his authorized representatives
13 with the sole responsibility for making this health and safety determination, through their powers
14 to enforce the code and conduct necessary investigations and inspections. In other words, section
15 10-1-1810 allows construction and demolition to deviate from the 50 percent requirement as
16 necessary to protect public health and safety, and any such deviations do not render Project
17 construction out of compliance with the code or any permits issued pursuant to section 10-1-
18 1810. City inspectors—and not Petitioner—are tasked with ensuring health and safety during
19 building demolition and construction. Each of these provisions demonstrate a strong public
20 policy against allowing the post-construction claims Petitioner now makes in this lawsuit.
21 The ordinances vest the City with the authority to evaluate construction conditions and
22 ensure safe building conditions and Petitioner’s attempts to question such analysis are misplaced.
23 Mandamus will not lie to compel City officials to exercise their judgment and determinations
24 regarding health and safety in a particular way. (See, e.g., Center for Biological Diversity v.
25 Department of Conservation (2018) 26 Cal.App.5th 161 [although statute and regulations
26 required Department of Conservation to “protect” certain aquifers, they did not mandate a
27 specific course of action to carry out the obligations; mandamus claim rejected]; Citizens for
28 Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350, 365-66 [although
11
RESPONDENT CITY OF BURBANK’S NOTICE OF DEMURRER AND DEMURRER TO SECOND
AMENDED PETITION
1 mandamus may issue to compel an official to take some action (if required by law), “the

2 uncontroverted evidence shows the City has taken action”; mandamus cannot compel the

3 exercise of judgment in a particular way]; AIDS Healthcare Foundation v. Los Angeles County

4 Dept. of Public Health (2011) 197 Cal.App.4th 693, 704-05 [mandamus cause of action properly

5 rejected where it sought to compel health agency to take particular steps to address spread of

6 disease].)

7 The trial court reviews an administrative action pursuant to Code of Civil Procedure

8 section 1085 to determine whether the agency's action was arbitrary, capricious, or entirely

9 lacking in evidentiary support, contrary to established public policy, was unlawful, was
10 procedurally unfair, or involved the agency’s failure to follow required procedures and provide
11 notices the law requires. (Vallejo Police Officers Assn. v. City of Vallejo (2017) 15 Cal.App.5th
12 601, 611-612.) There is no underlying absolute permit requirement or condition that the City
13 failed to impose or enforce. The City’s Code anticipates construction variance for safety and
14 there are no allegations to suggest the City’s issuance of the Certificate of Occupancy was
15 arbitrary, capricious, or entirely lacking in evidentiary support. In effect, Petitioner seeks to
16 compel the City to reach a particular conclusion regarding construction inspection and permit
17 compliance based solely on the facts it wishes to be true and for the purpose of supporting the
18 contention that a conditional use permit is required. Petitioner may not do so. (See, e.g., Marquez
19 v. State Dept. of Health Care Services (2015) 240 Cal.App.4th 87 [“Petitioners’ arguments,
20 therefore, do not show that DHCS fails to comply with section 14005, but merely debate how
21 DHCS should comply.”]; Riggs v. City of Oxnard (1984) 154 Cal.App.3d 526, 530 [“A writ of
22 mandate will not issue to compel that discretion be exercised in a particular way.”]; Blankenship
23 v. Michalski (1957) 155 Cal.App.2d 672, 674-75 [“Mandate, of course, cannot be employed to
24 control the exercise of discretion by an administrative officer. . . . Certainly, if [the City], in good
25 faith, determines that no violation has occurred, [it] should not be compelled to institute
26 abatement proceedings at the whim or caprice of every taxpayer who disagrees with him.”].)
27 Petitioner’s demolition claim relies on photos taken from off-site locations and Google Street
28 View images to purportedly estimate how much concrete was removed. (See, e.g., Offenhauser
12
RESPONDENT CITY OF BURBANK’S NOTICE OF DEMURRER AND DEMURRER TO SECOND
AMENDED PETITION
1 Decl., at ¶ 5 [relying on photos and images showing demolition work].) Petitioner’s “best guess”

2 as to the scope of demolition should not be substituted for the City’s expertise, on-site inspection

3 process, and health and safety determinations.

4 Burbank Municipal Code sections 10-1-404 and 10-1-406 authorize the Building Director

5 and his representatives—not the general public—to enforce the code and make health and safety

6 determinations during building demolition and construction. (Cf. Mendez v. Rancho Valencia

7 Resort Partners, LLC (2016) 3 Cal.App.5th 248, 269 [holding that an alleged violation of a

8 zoning standard which specifically provides for enforcement by public officials generally cannot

9 be enjoined by a private individual through a private cause of action without evidence of special
10 damages].) The only potential mandamus claim here would be to compel the City to issue the
11 Certificate of Occupancy. (Cf. Thompson v. City of Lake Elsinore (1993) 18 Cal.App.4th 49, 5
12 [building official may not withhold certificate of occupancy once it has determined construction
13 complied with applicable regulations].) Here, the City did just that; it dutifully discharged its
14 inspection duties by regularly and consistently visiting the Project site during construction. (See
15 Takiguchi Decl., at ¶ 18.) Building inspection and code enforcement is a specific regulatory
16 function of the City 1, and Petitioner may not insert itself into that process. Petitioner’s first cause
17 of action, which both ignores this authority and attempts to compel the City to reach a certain

18 conclusion regarding permit compliance, should be dismissed.

19 B. The Second Cause of Action Is Deficient and Should Be Dismissed.

20 Petitioner’s second cause of action alleges that the City improperly permitted the

21 Project’s menu board speaker without a conditional use permit based on Raising Cane’s

22 purported fraud perpetrated on the City. (SAP at p. 11.) Petitioner, therefore, seeks to rescind the

23 Project’s Certificate of Occupancy. (Id. at p. 12.) The claim should be dismissed for three

24 primary reasons: Petitioner has no standing to assert a fraud claim based on allegations that the

26 1
The City’s broad immunity for damages in a similar context further supports the City’s broad
27 authority to analyze construction sites within its jurisdiction to ensure building safety and
adherence to zoning standards and building permits. These determinations are beyond the
28 purview of subsequent challenge by Petitioner. (See Gov. Code §§ 818.4, 818.6, 821.2.)
13
RESPONDENT CITY OF BURBANK’S NOTICE OF DEMURRER AND DEMURRER TO SECOND
AMENDED PETITION
1 City was defrauded; the second cause of action challenges the City’s issuance of the building

2 permit, a challenge the Court has previously determined is time barred; and Petitioner seeks a

3 remedy that is unavailable.

4 First, Petitioner is required to plead fraud or intentional misrepresentation with

5 specificity; general and conclusory allegations do not suffice. (Tindell v. Murphy (2018) 22

6 Cal.App.5th 1239, 1249; Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153,

7 157.) Saliently, Petitioner must allege misrepresentation, knowledge of falsity, intent to defraud,

8 justifiable reliance, and damage. (Tindell, 22 Cal.App.5th, at 1249.) Despite the heightened

9 pleading standard, on which Petitioner fails to state a claim, Petitioner fails to address the
10 preliminary requirement that it have standing to even assert such a claim. Petitioner provides no
11 authority, as there is none, that it has standing to bring a fraud claim on behalf of the City.
12 Petitioner is an unrelated third party—no representations of any kind were made to Petitioner to
13 induce Petitioner to act in some way. It is unclear how Petitioner could assert any of the elements
14 of fraud or seek damages or relief on behalf of the City. Rather, Petitioner repeats the previous
15 allegation that it was adversely affected by the City’s issuance of the Building Permits, and not
16 by any representations made to the City (or, for that matter, to Petitioner). (SAP, at ¶ 2.)
17 Second, despite the fraud label, Petitioner’s second cause of action continues to challenge
18 the basis on which the City issued the Building Permits. Although Petitioner now focuses on the
19 menu board speaker as the basis for its claim, the claim is no different from those in the
20 Amended Petition which the Court has already ruled are untimely under Government Code
21 section 65009(c)(1)(E). The City made planning and zoning determinations that a conditional use
22 permit was not required for the Project, the drive-through, or the menu board speaker and
23 thereafter issued the Building Permits. Accordingly, the 90-day limitations period to challenge
24 the City’s approval expired on March 16, 2021, over three months before Petitioner filed its
25 petition on June 23, 2021.
26 Finally, Petitioner’s narrow focus on the menu board speaker requires the second cause of
27 action be dismissed. Even if a conditional use permit were needed for the speaker, the
28 conditional use permit requirement would be limited to the speaker alone and would not require
14
RESPONDENT CITY OF BURBANK’S NOTICE OF DEMURRER AND DEMURRER TO SECOND
AMENDED PETITION
1 the Project, including the drive-through, to obtain a conditional use permit. The City’s code

2 provides that “No residentially adjacent establishment may install exterior speakers for taking

3 orders, making announcements, playing music, or other purposes, unless a Conditional Use

4 Permit for such exterior speakers has been granted.” (See Zoning Code § 10-1- 1151(F),

5 (emphasis added)].) Thus, even assuming Petitioner’s allegations regarding the location of the

6 speaker were true, the Project would still not require a conditional use permit. Petitioner fails to

7 state sufficient facts to constitute a cause of action, as Petitioner’s requested remedy is

8 unavailable.

9 V. CONCLUSION
10 Based on the foregoing, the Demurrer should be sustained with prejudice as to the first
11 cause of action and as to the Respondent City. The second cause of action similarly fails.
12 DATED: June 1, 2022
13 Respectfully submitted,
City Attorney’s Office of the City of Burbank
14

17 By:
Jill A. Vander Borght
18 Senior Assistant City Attorney
Attorney for Defendant
19 CITY OF BURBANK
20

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RESPONDENT CITY OF BURBANK’S NOTICE OF DEMURRER AND DEMURRER TO SECOND
AMENDED PETITION
1 PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

3 I am employed in the County of Los Angeles, State of California. I am over the age of 18
years old and not a party to this action. My business address is 275 E. Olive Avenue, Burbank,
4 California 91502.
5 On June 1, 2022, I served the foregoing document described as: RESPONDENT CITY
OF BURBANK NOTICE OF DEMURRER AND DEMURRER TO PETITIONER’S
6 VERIFIED SECOND AMENDED PETITION FOR WRIT OF MANDATE;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the
7 interested parties in this action as follows:

8 [SEE ATTACHED SERVICE LIST]

9 ( ) BY MAIL: by placing ( ) the original ( x ) a true copy of the document(s) listed above in
a sealed envelope(s) to the persons at the addresses listed in the attached Service List. I
10 deposited such envelope(s) in the mail at Burbank, California. The envelop(s) was/were
mailed with postage thereon fully prepaid. I am readily familiar with the firm’s practice
11 of collection and processing correspondence for mailing. Under that practice it would be
12 deposited with the U.S. Postal Service on that same day with postage thereon fully
prepaid at Burbank, California in the ordinary course of business. I am aware that on
13 motion of party served, service is presumed invalid if postal cancellation date or postage
meter date is more than one (1) day after the date of deposit for mailing in affidavit.
14
( ) BY OVERNIGHT MAIL: by delivering the document(s) listed above in a sealed
15 envelope(s) designated by the express service carrier, with fees for delivery by the next
business day paid or provided for, addressed as per the attached Service List, to a facility
16
regularly maintained by the express service carrier or to an authorized courier or driver
17 authorized by the express service carrier to receive documents.

18 (X) BY ELECTRONIC SERVICE: by e-mailing the document(s) listed above to the parties
in this action using the email addresses identified on the attached Service List.
19
( ) ONLY BY ELECTRONIC TRANSMISSION: Only by emailing the document(s)
20 listed above to the parties in this action using the email addresses identified on the
attached Service List. During the period of National Emergency declared pursuant to the
21
COVID-19 pandemic, physical work in this office will be intermittent, and electronic
22 mail will be the preferred method of communication. No electronic message or other
indication that the transmission was unsuccessful was received within a reasonable time
23 after the transmission. We will provide a physical copy, on request only, upon a return to
the office and the conclusion of the National Emergency.
24
I certify and declare under penalty of perjury under the laws of the State of California that
25 the foregoing is true and correct. Executed on June 1, 2022, at Burbank, California
26

27
Silvia Kirollos
28

1
PROOF OF SERVICE
1 PROOF OF SERVICE
SERVICE LIST
2 Jamie T. Hall
Channel Law Group, LLP
3
8383 Wilshire Blvd. Suite 750
4 Beverly Hills, CA 90211
jamie.hall@channellawgroup.com
5 admin@channellawgroup.com
jq@channellawgroup.com
6

7 Attorney for Petitioner

8
COX, CASTLE & NICHOLSON LLP
9 David P. Waite, Sean T. Matsler, Robert C. Hull
2029 Century Park East, Suite 2100
10 Los Angeles, California 90067-3284
dwaite@coxcastle.com
11 smatsler@coxcastle.com
rhull@coxcastle.com
12

13
Attorney for Real Party in Interest
14

2
PROOF OF SERVICE

Case Info

Judge

Mitchell L. Beckloff Track Judge’s New Case

Case No.

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Document Filed Date

June 01, 2022

Case Filing Date

June 23, 2021

County

Parties

CITY OF BURBANK A MUNICIPAL CORPORATION Respondent
HALL JAMIE T. Attorney For Petitioner
HULL ROBERT C. Attorney For Real Party In Interest
RAISING CANE'S RESTAUARANTS L.L.C. Real Party In Interest
RAISING CANE'S RESTAURANTS LLC Real Party In Interest
RAISING CANE'S RESTAURANTS. LLC Real Party In Interest
SAVE RANCHO PROVIDENCIA NEIGHBORHOOD AN UNINCORPORATED ASSOCIATION Petitioner
VANDERBORGHT JILL ALICIA Attorney For Respondent
WAITE DAVID Attorney For Real Party In Interest

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Party Notice: SAVE RANCHO PROVIDENCIA NEIGHBORHOOD, AN UNINCORPORATED ASSOCIATION VS CITY OF BURBANK, A MUNICIPAL CORPORATION

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Case Info

Parties