Preview
P. RANDOLPH FINCH JR., SBN 185004
EMAIL: pfinch@ftblaw.com
1 ANDREA L. PETRAY, SBN 240085
EMAIL: apetray@ftblaw.com
Exempt from Filing Fees
2 THOMAS E. DIAMOND, SBN 323333
Government Code section 6103
EMAIL: tdiamond@ftblaw.com
3 FINCH, THORNTON & BAIRD, LLP
ATTORNEYS AT LAW
4 4747 EXECUTIVE DRIVE – SUITE 700
SAN DIEGO, CALIFORNIA 92121-3107
5 TELEPHONE: (858) 737-3100
FACSIMILE: (858) 737-3101
6 Attorneys for Defendant County of Kern
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF KERN
10 BAKERSFIELD COURTHOUSE
11 JEAN-PIERRE BIANE, doing business as CASE NO: BCV-22-103359 (TMF)
JP BIANE FARMS,
12 MEMORANDUM IN SUPPORT OF COUNTY
OF KERN’S DEMURRER TO PLAINTIFF’S
13 Plaintiff, FIRST AMENDED VERIFIED PETITION FOR
WRIT OF MANDATE
14 v.
Assigned to:
15 COUNTY OF KERN; and Hon. Therese M. Foley, Dept. K
16 DOES 1 through 50, inclusive,
Date: September 12, 2023
Defendants. Time: 9:00 a.m.
17 Dept.: K
18 Complaint Filed: December 13, 2022
Trial Date: Not Set
19
20 / / / / /
21 / / / / /
22 / / / / /
23 / / / / /
24 / / / / /
25 / / / / /
26 / / / / /
27 / / / / /
28 / / / / /
MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
1 TABLE OF CONTENTS
2 I. INTRODUCTION ........................................................................................................... 6
3 II. AUTHORITY FOR DEMURRER .................................................................................. 7
4 III. FACTUAL BACKGROUND .......................................................................................... 7
5 IV. THE PETITION FAILS TO STATE A
CAUSE OF ACTION FOR WRIT OF MANDATE ....................................................... 9
6
A. Oversight of Compliance With the Mining
7 Application Is Not a Ministerial Duty and Petitioner Cannot
Compel the County to Exercise Its Discretion in Any Particular Manner ........... 9
8
1. The County’s Demurrer Should Be
9 Sustained as to the First, Second, and Third Causes
Causes of Action Because There Is No Ministerial Duty to Act ............. 9
10
i. The First Cause of Action Does Not Allege a
11 Ministerial Duty to Find Granite in Violation of the MMRP .... 10
12 ii. The Second Cause of Action Does Not
Allege a Ministerial Duty to Find Granite in
13 Violation of Ordinance Code Chapters 19.100 and 19.104 ....... 12
14 iii. The Third Cause of Action Does
Not Allege a Ministerial Duty to Find
15 Granite in Violation of Ordinance Code Chapter 19.114 .......... 14
16 2. The County Has Further Discretion
To Remedy Violations and Petitioner Cannot Compel
17 The County to Take Further Action in Any Particular Manner ............. 14
18 B. The County’s Demurrer to Petitioner’s First, Second, and
Third Causes of Action Should Be Sustained Because Petitioner
19 Has an Adequate Remedy at Law Through Administrative Remedies ............. 15
20 C. The County’s Demurrer to Petitioner’s First, Second, And
Third Causes of Action Should Be Sustained Because Petitioner
21 Has an Adequate Remedy at Law Through an Action for Damages ................. 17
22 V. THE PETITION FAILS TO STATE A CAUSE
OF ACTION FOR DECLARATORY RELIEF ............................................................ 18
23
A. The County’s Demurrer to the Fourth Cause of Action Should
24 Be Sustained Because It States an Improper Subject for Declaratory Relief .... 18
25 B. The County’s Demurrer to the Fourth Cause of Action Should
Be Sustained Because Petitioner Has an Adequate Legal Remedy ................... 19
26
VI. CONCLUSION .............................................................................................................. 20
27
28
FINCH, THORNTON & 2
BAIRD, LLP
4747 Executive
Drive - Suite 700
San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
1 TABLE OF AUTHORITIES
2 Page
3 Cases
4
Brownfield v. Daniel Freeman Marina Hosp.
5 (2008) 208 Cal.App.3d 405 ................................................................................................. 18
6 Citizens for Odor Nuisance Abatement v. City of San Diego
(2017) 8 Cal.App.5th 350 .................................................................................................... 10
7
City of Culver City v. Cohen
8 (2017) 14 Cal.App.5th 1 ...................................................................................................... 15
9
County of San Diego v. State of California
10 (2008) 164 Cal.App.4th 580 .................................................................................................. 9
11 Fair Education Santa Barbara v. Santa Barbara Unified School Dist.
(2021) 72 Cal.App.5th 884 ............................................................................ 9, 11, 12, 13, 20
12
Flying Dutchman Park, Inc. v. City and County of San Francisco
13 (2001) 93 Cal.App.4th 1129 ................................................................................................ 19
14 Goodman v. Kennedy
15 (1976) 18 Cal.3d 335 ............................................................................................................. 7
16 Gruenberg v. Aetna Insurance Company
(1973) 9 Cal.3d 566 ............................................................................................................... 7
17
Heckendorn v. City of San Marino
18 (1986) 42 Cal.3d 481 ............................................................................................................. 7
19 Hilton v. Board of Supervisors
(1970) 7 Cal.App.3d 708 ....................................................................................................... 7
20
21 Kelsey v. Colwell
(1973) 30 Cal.App.3d 590 ..................................................................................................... 9
22
Los Globos Corp. v. City of Los Angeles
23 (2017) 17 Cal.App.5th 627 ............................................................................................ 15, 19
24 MacLeod v. Long
(1930) 110 Cal.App. 334 [294 P. 54]..................................................................................... 9
25
26 Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board
(2022) 76 Cal.App.5th 1 .................................................................................................. 9, 15
27
Moran v. Dept. of Motor Vehicles
28 (2006) 139 Cal.App.4th 688 ................................................................................................ 17
FINCH, THORNTON & 3
BAIRD, LLP
4747 Executive
Drive - Suite 700
San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
Pan Pac. Props., Inc. v. County of Santa Cruz
1 (1978) 81 Cal.App.3d 244 ............................................................................................. 15, 19
2
Phelan v. Superior Court of San Francisco
3 (1950) 35 Cal.2d 363 ........................................................................................................... 17
4 Riggs v. City of Oxnard
(1984) 154 Cal.App.3d 526 ........................................................................................... 10, 15
5
Rio Vista Farm Bureau Ctr. v. County of Solano
6 (1992) 5 Cal.App.4th 351 .................................................................................................... 11
7
San Elijo Ranch v. County of San Diego
8 (1998) 65 Cal.App.4th 608 ............................................................................................ 16, 17
9 Sheetz v. County of El Dorado
(2022) 84 Cal.App.5th 394 ............................................................................................ 18, 19
10
Stone v. Bd. of Supervisors
11 (1988) 205 Cal.App.3d 927 ................................................................................................. 11
12 Wilhelm v. Pray, Price, Williams & Russell
13 (1986) 186 Cal.App.3d 1324 ................................................................................................. 7
14 Statutes
15 Code of Civil Procedure section 430.10 ...................................................................................... 7
16 Code of Civil Procedure section 430.10, subdivision (e) ............................................................ 7
17 Code of Civil Procedure section 430.50, subdivision (a) ............................................................ 7
18 Code of Civil Procedure section 1085 ......................................................................................... 9
19 Ordinance Code section 19.06.020 ...................................................................................... 11, 12
20
Ordinance Code section 19.100.050 .......................................................................................... 13
21
Ordinance Code section 19.100.070 .......................................................................................... 12
22
Ordinance Code section 19.100.080 .......................................................................................... 13
23
Ordinance Code section 19.100.090 .......................................................................................... 13
24
Ordinance Code section 19.100.090, subdivision (I) ................................................................. 15
25
Ordinance Code section 19.102.030 .......................................................................................... 15
26
27 Ordinance Code section 19.102.090 .......................................................................................... 15
28 Ordinance Code section 19.102.170, subdivision (B) ............................................................... 15
FINCH, THORNTON & 4
BAIRD, LLP
4747 Executive
Drive - Suite 700
San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
Ordinance Code section 19.104.020 .......................................................................................... 13
1
Ordinance Code section 19.104.030 .......................................................................................... 13
2
3 Ordinance Code section 19.104.040 .......................................................................................... 13
4 Ordinance Code section 19.114.050 .......................................................................................... 14
5 Ordinance Code Chapter 19.100 .................................................................................... 12, 13, 18
6 Ordinance Code Chapter 19.104 .................................................................................... 12, 18, 19
7 Ordinance Code Chapter 19.104 .......................................................................................... 18, 19
8 Ordinance Code Chapter 19.114 .................................................................................... 14, 18, 19
9
Public Resources Code section 2716 ......................................................................................... 17
10
Public Resources Code section 2774.1 ...................................................................................... 16
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FINCH, THORNTON & 5
BAIRD, LLP
4747 Executive
Drive - Suite 700
San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
1 I
2 INTRODUCTION
3 Petitioner Jean-Pierre Biane’s (“Petitioner”) First Amended Verified Petition for Writ
4 of Mandate and Complaint for Declaratory Relief (“Petition”) improperly seeks to usurp the
5 discretionary code enforcement authority of the County of Kern (“County”). The County has
6 already taken reasonable action to respond to Petitioner’s complaints regarding the operation of
7 a duly permitted aggregate mine near his farm. Nevertheless, Petitioner now asks this court to
8 force the County to prohibit the use of a public road Petitioner would prefer to be reserved
9 exclusively for his own business operations. The law does not allow Petitioner to impose his
10 judgment on the County.
11 Further, Petitioner has not, and cannot, allege that he exhausted his administrative
12 remedies, a condition precedent to the Petition. The mine at issue was approved in 2016.
13 Petitioner does not allege he objected to the project at a public hearing or appealed the County
14 Commission’s approval to the County Board of Supervisors.
15 Finally, the Petition seeks purely equitable relief in the form of three petitions for writ
16 of mandate and one cause of action for declaratory relief. However, Petitioner explicitly
17 alleges that he has suffered monetary damages as a result of the trucks from the project passing
18 by his farm, and recently filed a separate lawsuit in attempt to collect for those damages.
19 Petitioner cannot seek equitable relief where he has an adequate legal remedy available.
20 Accordingly, the court should sustain the County’s demurrers to Petitioner’s First,
21 Second, and Third Causes of Action for writ of mandate, and Fourth Cause of Action for
22 declaratory relief, on the grounds that each Cause of Action fails to allege facts sufficient to
23 constitute a cause of action. The County met and conferred with Petitioner regarding the above
24 pleading defects prior to his filing the Petition. Yet, the defects remain unresolved and are
25 unresolvable by further amendment. Thus, the County requests this court sustain the demurrer
26 without leave to amend as to each Cause of Action.
27 / / / / /
28
FINCH, THORNTON & 6
BAIRD, LLP
4747 Executive
Drive - Suite 700
San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
1 II
2 AUTHORITY FOR DEMURRER
3 “The sufficiency of a petition in a mandamus proceeding can be tested by demurrer.”
4 (Hilton v. Board of Supervisors (1970) 7 Cal.App.3d 708, 713.) Code of Civil Procedure
5 section 430.10 provides, in pertinent part:
6 The 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
7 grounds:
8 * * *
9 (e) The pleading does not state facts sufficient to constitute a cause of action.
A demurrer “may be taken to the whole complaint or cross-complaint or to any
10 of the causes of action stated therein.”
11 (Code Civ. Proc., § 430.50, subd. (a).) When a party fails to state facts sufficient to constitute
12 a cause of action, the pleading is susceptible to general demurrer. (Code Civ. Proc., § 430.10,
13 subd. (e); Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1330.) In
14 considering a demurrer, the court takes into account facts pleaded, but disregards legal
15 conclusions. (Gruenberg v. Aetna Insurance Company (1973) 9 Cal.3d 566, 572.)
16 If a pleading is subject to demurrer, the plaintiff bears the burden of showing how it can
17 be amended to remedy the legal defects. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) If
18 there is no “reasonable possibility” that the plaintiff can cure a defective claim by amendment,
19 the court should sustain the demurrer without leave to amend. (Heckendorn v. City of San
20 Marino (1986) 42 Cal.3d 481, 486.)
21 III
22 FACTUAL BACKGROUND
23 The Petition arises out of the County’s approval of a sand and gravel mine known as
24 the Solari Sand and Gravel Project (“Project”). (Petition, ¶ 19.)1 The Project is owned and
25 operated by Granite Construction Company (“Granite”) and is in an unincorporated area of
26 Kern County, with a common street address of 8999 Capacity Street, Arvin, California 93203.
27
28 1
Unless otherwise indicated, all references to “¶” hereinafter refer to the Petition.
FINCH, THORNTON & 7
BAIRD, LLP
4747 Executive
Drive - Suite 700
San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
1 (¶ 19.) In or around September 2008, Granite submitted an Application for a Conditional Use
2 Permit (“CUP”), and an Application for Surface Mining Permit and/or Reclamation Plan
3 (“Mining Application”) to the County Planning and Natural Resources Department (“Planning
4 Department”), who prepared an environmental evaluation for the Project under the California
5 Environmental Quality Act (“CEQA”), with a recommendation for consideration at the Kern
6 County Planning Commission (“Planning Commission”). (See concurrently filed Request for
7 Judicial Notice (“RJN”), Ex. 1, and ¶ 19.)
8 The County determined Granite’s Mining Application was complete in or around July
9 2009 and began preparing an Environmental Impact Report (“EIR”) for the Project. (¶ 32.) As
10 part of the six-year EIR process, the County created a Mitigation Monitoring and Reporting
11 Program (“MMRP”) and provided specific steps detailing how Granite was conditioned to
12 comply with each mitigation measure. (RJN, Ex. 3.) The County’s Planning Commission
13 approved the Project on or about September 22, 2016. (RJN, Ex. 4; ¶ 44.) In doing so, the
14 County conditioned its approval of the Project on Granite operating in “substantial
15 conformance” with the final approved Surface Mining and Reclamation Plan (“Mining Plan”)2
16 and all conditions of approval, including the MMRP. (RJN, Ex. 4.)
17 Petitioner contends the County failed to enforce the terms of the CUP, Mining Plan,
18 and MMRP. (¶¶ 90, 97, 102, 110.) Specifically, he alleges the CUP and Mining Plan provide
19 the only roads any traffic to or from the Project can ever use, and prohibit any use of Rancho
20 Road, the public road where Petitioner’s farm is located. (¶¶ 37, 46.) Petitioner objects to and
21 alleges to have seen an unspecified number of Project vehicles using Rancho Road. (¶ 46.)
22 Each of Petitioner’s four causes of action seek to compel the County to enforce Petitioner’s
23 judgment, and interpretation of the terms of the CUP and the Mining Plan, by halting Granite’s
24 entire operation until Petitioner is personally satisfied all use of Rancho Road will stop. (See
25 ¶¶ 93, 106, 117.) These requests must fail.
26 / / / / /
27
2
After County approval, Granite’s Mining Application became an approved Surface Mining and Reclamation Plan,
28 subject to conditions of approval. (See RJN, Ex. 4, p. 2, ¶ (f).)
FINCH, THORNTON & 8
BAIRD, LLP
4747 Executive
Drive - Suite 700
San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
1 IV
2 THE PETITION FAILS TO STATE A CAUSE OF ACTION FOR WRIT OF MANDATE
3 Petitioner’s First, Second, and Third Causes of Action each seek a writ of mandate
4 pursuant to Code of Civil Procedure section 1085 to compel the County to enforce Petitioner’s
5 interpretation of the CUP, Mining Application, and MMRP. The three basic requirements for
6 the issuance of a writ are: (1) a clear, present, and usually ministerial duty upon the part of the
7 respondent; (2) a clear, present, and beneficial right in the petitioner to the performance of that
8 duty; and (3) the absence of any other plain, speedy, and adequate remedy. (Monterey
9 Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1,
10 18; County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 593.)
11 A. Oversight of Compliance With the Mining
Application Is Not a Ministerial Duty and Petitioner Cannot
12 Compel the County to Exercise Its Discretion in Any Particular Manner
13 Petitioner’s first three Causes of Action fail to state a claim for writ of mandate because
14 they do not allege a clear, present, and usually ministerial duty on the part of the County. The
15 County has discretionary authority to determine if a violation of the MMRP, CUP, or Mining
16 Plan exists, and Petitioner cannot usurp that authority.
17 1. The County’s Demurrer Should Be
Sustained as to the First, Second, and Third Causes
18 Causes of Action Because There Is No Ministerial Duty to Act
19 Petitioner has the burden to establish the existence of a ministerial duty on the part of
20 the County to act as Petitioner demands. (MacLeod v. Long (1930) 110 Cal.App. 334, 339
21 [294 P. 54].) “A ministerial act is one that a public functionary ‘is required to perform in a
22 prescribed manner in obedience to the mandate of legal authority,’ without regard to his or her
23 own judgment or opinion concerning the propriety of such act.” (Monterey Coastkeeper, supra,
24 76 Cal.App.5th at p. 19.) In contrast, authority is discretionary where it confers power on a
25 public agency to act officially according to the dictates of its own judgment. (Fair Education
26 Santa Barbara v. Santa Barbara Unified School Dist. (2021) 72 Cal.App.5th 884, 893-894
27 (“Fair Education”).) Importantly, the term “may” is permissive and grants the public agency
28
FINCH, THORNTON & 9
BAIRD, LLP
4747 Executive
Drive - Suite 700
San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
1 discretion with regard to the statutory command. (See Kelsey v. Colwell (1973) 30 Cal.App.3d
2 590, 593 [statute providing a City or County “may establish” an agricultural preserve does not
3 require it to do so].)
4 Where a function is discretionary, the law is clear, a public entity cannot be compelled
5 to exercise that discretionary decision in any particular manner. (See Riggs v. City of Oxnard
6 (1984) 154 Cal.App.3d 526, 530 [municipalities have broad discretion to determine the most
7 appropriate mode of enforcing ordinances and a writ of mandate will not issue to compel that
8 discretion be exercised in a particular way]; Citizens for Odor Nuisance Abatement v. City of
9 San Diego (2017) 8 Cal.App.5th 350, 366.)
10 i. The First Cause of Action Does Not Allege a
Ministerial Duty to Find Granite in Violation of the MMRP
11
12 Petitioner’s First Cause of Action focuses on a single mitigation measure in the MMRP,
13 mitigation measure 4.13-3. (¶ 90.) Petitioner alleges mitigation measure 4.13-3 requires the
14 County to videotape roadway segments to be used for Project-related travel and restore those
15 roadways upon Project completion. (¶¶ 89, 90.) Petitioner claims the County failed to
16 videotape Rancho Road, in violation of the MMRP and CEQA, and seeks an order “compelling
17 the County to enforce all mitigation measures” and “directing the County to suspend Granite’s
18 active mining operations until such County enforcement and full mitigation measure
19 compliance by Granite is achieved.” (¶ 93.)
20 However, the County has discretion to determine whether Granite is in violation of the
21 MMRP. The MMRP is incorporated as a condition of approval to Granite’s Mining Plan. The
22 Resolution approving the Project states, in pertinent part:
23 [I]t is the decision of the Planning Commission that the application herein
described be, and hereby, recommends the Board of Supervisors … ADOPT
24 Mitigation Measure Monitoring Program and APPROVE, as recommended by
Staff, the applications for the reasons specified in this Resolution with
25 development to be in substantial conformity with the approved [Mining Plan]3,
and the approved [Mining Plan] shall be revised to include the following
26
27 3
The Resolution refers to the “approved plan.” (RJN, Ex. 4, p. 4.) The “approved plan” means the approved Mining
Application (i.e., the approved [Application for Surface Mining Permit and/or Reclamation] Plan). (RJN, Ex. 4, p.
28 2, ¶ (f).)
FINCH, THORNTON & 10
BAIRD, LLP
4747 Executive
Drive - Suite 700
San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
conditions of approval:
1
* * *
2
(37) All mitigation measures included in the adopted Mitigation Measure
3 Monitoring Program for the Solari Sand and Gravel Project by Granite
Construction … are hereby incorporated as Conditions of Approval.
4
5 (See RJN, Ex. 4, at pp. 3-7 [emphasis added].) The Resolution effectuates the MMRP by
6 incorporating it into the conditions of approval of the Mining Application, with which Granite
7 must “substantially” conform.
8 The determination as to whether Project operations are in “substantial conformity” with
9 the Mining Plan is discretionary, as it is based on the County’s judgment. (See Fair
10 Education, supra, 72 Cal.App.5th at p. 893.) It is well established that public agencies have
11 substantial discretion to determine the most appropriate means to enforce an MMRP and assess
12 compliance with adopted mitigation measures. (See Stone v. Bd. of Supervisors (1988) 205
13 Cal.App.3d 927, 935-937; Rio Vista Farm Bureau Ctr. v. County of Solano (1992) 5
14 Cal.App.4th 351, 380.) Kern County Ordinance Code (“Ordinance Code”) section 19.06.020
15 expressly grants the County Planning Director authority to interpret compliance with Mining
16 Plan conditions of approval, such as the MMRP. (See Lodgment of Authorities (“LOA”), Ex.
17 14, Ord. Code § 19.06.020 [“The planning director shall be vested with the authority to
18 administer this title.… Where there is a question as to the meaning or the intent of any
19 requirement of this title, including interpretations or conditions of approval required in
20 conjunction with the approval of any ministerial or discretionary permit authorized therein, the
21 planning director shall provide any necessary interpretation, and the decision of the planning
22 director shall be final.”].) Assessing “substantial conformity” requires a qualitative
23 interpretation of the degree of compliance based on the various conditions on Project
24 development. The Mining Plan is the result of thousands of pages of submissions and studies
25 relating to potential adverse environmental impacts, land use concerns, and public safety
26 hazards, among other things. (See RJN, Ex. 1.) Compliance with the MMRP is just one of 37
27 distinct conditions of approval of the Mining Plan. (RJN, Ex. 4, at pp. 3-7.) The MMRP alone
28
FINCH, THORNTON & 11
BAIRD, LLP
4747 Executive
Drive - Suite 700
San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
1 contains hundreds of unique requirements. (See RJN, Ex. 3.)
2 The County has discretion to determine both whether an alleged violation of the Mining
3 Plan, including the MMRP, exists, and whether an alleged violation, if true, arises to
4 “substantial” nonconformity with the entire Mining Plan. The County has considered
5 Petitioner’s complaints, which relate to just one mitigation measure contained in one
6 document, and determined that his allegations, even if true, do not amount to a failure to
7 substantially conform with the Mining Plan. (¶ 90.) Petitioner cannot commandeer the
8 County’s authority to make this decision, which is expressly reserved to the County Planning
9 Director. (See LOA, Ex. 14, Ord. Code § 19.06.020.) The Petition does not and cannot allege
10 a ministerial duty on the part of the County to “suspend Granite’s active mining operations” or
11 otherwise require the County to take his desired enforcement action. (¶ 93.) Thus, the First
12 Cause of Action fails to state facts sufficient to constitute a cause of action for writ of mandate.
13 ii. The Second Cause of Action Does Not
Allege a Ministerial Duty to Find Granite in
14 Violation of Ordinance Code Chapters 19.100 and 19.104
15 The Second Cause of Action alleges Ordinance Code Chapters 19.100 and 19.104
16 create ministerial duties to require Project traffic not use Rancho Road. (¶¶ 105, 106.)
17 Petitioner asks this court to “direct[] the County to comply with its obligations set forth” in
18 Chapters 19.100 and 19.104, including by issuing penalties and revoking the Mining Plan. (¶¶
19 105, 106.) Petitioner’s interpretations of these Chapters are meritless.
20 The cited Chapters do not create any duty that the County is “required to perform in a
21 prescribed manner … without regard to [its] own judgment or opinion concerning the propriety
22 of such act.” (Fair Education, supra, 72 Cal.App.5th at p. 893.) Rather, Chapter 19.100
23 creates several layers of discretion for enforcement actions: “Either the building official or the
24 planning director may initiate enforcement action pursuant to this section.” (See LOA, Ex. 11,
25 Ord. Code § 19.100.070 [emphasis added].) If “the building official finds the surface mining
26 operation is not in compliance,” a discretionary decision, the building official “may” notify the
27 operator, and the Planning Director “may” issue an order requiring compliance. (Ibid.) Only if
28
FINCH, THORNTON & 12
BAIRD, LLP
4747 Executive
Drive - Suite 700
San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
1 the building official finds noncompliance, and chooses to issue a notice, does County set a date
2 for a public hearing in front of the Planning Commission. (See LOA, Ex. 11, Ord. Code §
3 19.100.080.) If such a hearing is set, the Planning Commission “may” take a series of actions,
4 including revocation of permits, or issue fines. (See LOA, Ex. 11, Ord. Code § 19.100.090.)
5 Finally, only where the “planning director determines that a proposed amendment” to an
6 approved reclamation constitutes a “substantial deviation” (e.g., “increases in the amount of
7 surface area to be disturbed”), will the amendment be considered by the Planning Commission
8 at a regularly scheduled public hearing. (See LOA, Ex. 11, Ord. Code § 19.100.050.)
9 Clearly, the cited Chapters create discretionary authority, in that they allow the County
10 to act officially according to the dictates of its own judgment. (See Fair Education, supra, 72
11 Cal.App.5th at pp. 893-894.) Petitioner does not, and cannot, cite to any provision within
12 Chapter 19.100 from which he contends these ministerial duties are created. That is because
13 no such provisions exist.
14 Similarly, Petitioner summarily concludes Chapter 19.104 creates a ministerial duty to
15 enforce provisions of the CUP, including exclusive use of the specified access route. (¶ 97.)
16 Petitioner again fails to cite to any provision of Chapter 19.104 from which it alleges such a
17 ministerial duty is created. Rather, Chapter 19.104 makes clear its purpose “is to establish
18 procedures and general standards for the review and approval of conditional use permits
19 authorized by various sections of this title.” Unsurprisingly, the Chapter pertains only to the
20 content of applications (See LOA, Ex. 12, Ord. Code § 19.104.020), review and approval
21 procedures (See LOA, Ex. 12, Ord. Code § 19.104.030), and basis for approval (See LOA, Ex.
22 12, Ord. Code § 19.104.040). The County issued the CUP for the Project in September 2016,
23 at which point the “review and approval” of the CUP was complete. (¶ 44.) Chapter 19.104
24 simply does not apply, let alone create a ministerial duty.
25 Petitioner’s self-serving and conclusory reference to Chapters 19.100 and 19.104 are
26 insufficient to satisfy Petitioner’s burden to show a ministerial duty. The Second Cause of
27 Action does not, and cannot, allege facts sufficient to state a cause of action for writ of
28
FINCH, THORNTON & 13
BAIRD, LLP
4747 Executive
Drive - Suite 700
San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
1 mandate.
2 iii. The Third Cause of Action Does Not Allege a Ministerial Duty
to Find Granite in Violation of Ordinance Code Chapter 19.114
3
4 Petitioner’s Third Cause of Action alleges that the County has a ministerial duty to
5 abate Granite’s “public nuisance” under Ordinance Code Chapter 19.114. (¶ 112.) However,
6 Ordinance Code section 19.114.050 provides, if a violation of a permit condition occurs, “…an
7 official notice to comply and/or compliance letter may be given.” (Emphasis added.) As
8 discussed above, the determination of whether use of Rancho Road constitutes a violation
9 requires the County to find that activity results in a “substantial” nonconformance with the
10 Mining Plan, a discretionary decision requiring judgment. Where that discretionary
11 determination is made, and correction of the violation(s) does not occur within the specified
12 period, the “building official may initiate revocation proceedings in accordance with the
13 provisions of Section 19.102.020 of this title.” (See LOA, Ex. 13, Ord. Code, § 19.114.050,
14 emphasis added.) Again, Petitioner’s conclusory allegation that Chapter 19.114 creates a
15 ministerial duty is both incorrect and insufficient to satisfy Petitioner’s burden to show a
16 ministerial duty. Thus, the Third Cause of Action fails to state facts sufficient to constitute a
17 cause of action.
18 2. The County Has Further Discretion
To Remedy Violations and Petitioner Cannot Compel
19 The County to Take Further Action in Any Particular Manner
20 In addition to discretion to determine whether a “substantial” violation of the MMRP,
21 CUP, or Mining Plan has occurred, the County has a further level of discretion as to the
22 appropriate enforcement action to take if a violation is found. Even if Petitioner is correct that
23 Granite is in violation of the MMRP, CUP, and Mining Plan (which the County disputes), he
24 cannot direct the County to make any particular response. Accordingly, the First, Second, and
25 Third Causes of Action, which seek to order the County to revoke Granite’s CUP and/or
26 suspend its mining operations, must fail.
27 The Ordinance Code provides the County a wide range of enforcement actions it can
28
FINCH, THORNTON & 14
BAIRD, LLP
4747 Executive
Drive - Suite 700
San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
1 take should it conclude the Project is not in compliance with the Mining Plan. This includes
2 “[s]uch order or orders as may be appropriate to correct the violation or default.” (See LOA,
3 Ex. 11, Ord. Code § 19.100.090, subd. (I).) Petitioner admits the County has acted: it required
4 Granite to install signs indicating the proper haul route. (See ¶¶ 58, 69, 75-78.) The County
5 has exercised its discretion in a manner it deems appropriate to abate the alleged harm. (See
6 LOA, Ex. 11, Ord. Code § 19.100.090, subd. (I).) Petitioner is not permitted to substitute his
7 judgment for that of the County based on his personal irritation with the use of a public road.
8 (See Riggs, supra, 154 Cal.App.3d at p. 530.) Thus, he cannot allege a clear, present, and
9 ministerial duty on the part of the County, one of three required elements for a writ of mandate,
10 and his First, Second, and Third Causes of Action fail to state facts sufficient to constitute a
11 cause of action.
12 B. The County’s Demurrer to Petitioner’s First, Second, and
Third Causes of Action Should Be Sustained Because Petitioner
13 Has an Adequate Remedy at Law Through Administrative Remedies
14 Petitioner also cannot claim he lacks a plain, speedy, and adequate remedy at law.
15 Petitioner does not allege that he availed himself of the administrative relief process provided
16 by the County, despite ample opportunity to do so.
17 It is well established that the availability of an adequate administrative remedy
18 precludes issuance of a writ of mandate. (Monterey Coastkeeper, supra, 76 Cal.App.5th at pp.
19 13-18; City of Culver City v. Cohen (2017) 14 Cal.App.5th 1,
Preview
P. RANDOLPH FINCH JR., SBN 185004 EMAIL: pfinch@ftblaw.com 1 ANDREA L. PETRAY, SBN 240085 EMAIL: apetray@ftblaw.com Exempt from Filing Fees 2 THOMAS E. DIAMOND, SBN 323333 Government Code section 6103 EMAIL: tdiamond@ftblaw.com 3 FINCH, THORNTON & BAIRD, LLP ATTORNEYS AT LAW 4 4747 EXECUTIVE DRIVE – SUITE 700 SAN DIEGO, CALIFORNIA 92121-3107 5 TELEPHONE: (858) 737-3100 FACSIMILE: (858) 737-3101 6 Attorneys for Defendant County of Kern 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF KERN 10 BAKERSFIELD COURTHOUSE 11 JEAN-PIERRE BIANE, doing business as CASE NO: BCV-22-103359 (TMF) JP BIANE FARMS, 12 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S 13 Plaintiff, FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE 14 v. Assigned to: 15 COUNTY OF KERN; and Hon. Therese M. Foley, Dept. K 16 DOES 1 through 50, inclusive, Date: September 12, 2023 Defendants. Time: 9:00 a.m. 17 Dept.: K 18 Complaint Filed: December 13, 2022 Trial Date: Not Set 19 20 / / / / / 21 / / / / / 22 / / / / / 23 / / / / / 24 / / / / / 25 / / / / / 26 / / / / / 27 / / / / / 28 / / / / / MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE 1 TABLE OF CONTENTS 2 I. INTRODUCTION ........................................................................................................... 6 3 II. AUTHORITY FOR DEMURRER .................................................................................. 7 4 III. FACTUAL BACKGROUND .......................................................................................... 7 5 IV. THE PETITION FAILS TO STATE A CAUSE OF ACTION FOR WRIT OF MANDATE ....................................................... 9 6 A. Oversight of Compliance With the Mining 7 Application Is Not a Ministerial Duty and Petitioner Cannot Compel the County to Exercise Its Discretion in Any Particular Manner ........... 9 8 1. The County’s Demurrer Should Be 9 Sustained as to the First, Second, and Third Causes Causes of Action Because There Is No Ministerial Duty to Act ............. 9 10 i. The First Cause of Action Does Not Allege a 11 Ministerial Duty to Find Granite in Violation of the MMRP .... 10 12 ii. The Second Cause of Action Does Not Allege a Ministerial Duty to Find Granite in 13 Violation of Ordinance Code Chapters 19.100 and 19.104 ....... 12 14 iii. The Third Cause of Action Does Not Allege a Ministerial Duty to Find 15 Granite in Violation of Ordinance Code Chapter 19.114 .......... 14 16 2. The County Has Further Discretion To Remedy Violations and Petitioner Cannot Compel 17 The County to Take Further Action in Any Particular Manner ............. 14 18 B. The County’s Demurrer to Petitioner’s First, Second, and Third Causes of Action Should Be Sustained Because Petitioner 19 Has an Adequate Remedy at Law Through Administrative Remedies ............. 15 20 C. The County’s Demurrer to Petitioner’s First, Second, And Third Causes of Action Should Be Sustained Because Petitioner 21 Has an Adequate Remedy at Law Through an Action for Damages ................. 17 22 V. THE PETITION FAILS TO STATE A CAUSE OF ACTION FOR DECLARATORY RELIEF ............................................................ 18 23 A. The County’s Demurrer to the Fourth Cause of Action Should 24 Be Sustained Because It States an Improper Subject for Declaratory Relief .... 18 25 B. The County’s Demurrer to the Fourth Cause of Action Should Be Sustained Because Petitioner Has an Adequate Legal Remedy ................... 19 26 VI. CONCLUSION .............................................................................................................. 20 27 28 FINCH, THORNTON & 2 BAIRD, LLP 4747 Executive Drive - Suite 700 San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE 1 TABLE OF AUTHORITIES 2 Page 3 Cases 4 Brownfield v. Daniel Freeman Marina Hosp. 5 (2008) 208 Cal.App.3d 405 ................................................................................................. 18 6 Citizens for Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350 .................................................................................................... 10 7 City of Culver City v. Cohen 8 (2017) 14 Cal.App.5th 1 ...................................................................................................... 15 9 County of San Diego v. State of California 10 (2008) 164 Cal.App.4th 580 .................................................................................................. 9 11 Fair Education Santa Barbara v. Santa Barbara Unified School Dist. (2021) 72 Cal.App.5th 884 ............................................................................ 9, 11, 12, 13, 20 12 Flying Dutchman Park, Inc. v. City and County of San Francisco 13 (2001) 93 Cal.App.4th 1129 ................................................................................................ 19 14 Goodman v. Kennedy 15 (1976) 18 Cal.3d 335 ............................................................................................................. 7 16 Gruenberg v. Aetna Insurance Company (1973) 9 Cal.3d 566 ............................................................................................................... 7 17 Heckendorn v. City of San Marino 18 (1986) 42 Cal.3d 481 ............................................................................................................. 7 19 Hilton v. Board of Supervisors (1970) 7 Cal.App.3d 708 ....................................................................................................... 7 20 21 Kelsey v. Colwell (1973) 30 Cal.App.3d 590 ..................................................................................................... 9 22 Los Globos Corp. v. City of Los Angeles 23 (2017) 17 Cal.App.5th 627 ............................................................................................ 15, 19 24 MacLeod v. Long (1930) 110 Cal.App. 334 [294 P. 54]..................................................................................... 9 25 26 Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1 .................................................................................................. 9, 15 27 Moran v. Dept. of Motor Vehicles 28 (2006) 139 Cal.App.4th 688 ................................................................................................ 17 FINCH, THORNTON & 3 BAIRD, LLP 4747 Executive Drive - Suite 700 San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE Pan Pac. Props., Inc. v. County of Santa Cruz 1 (1978) 81 Cal.App.3d 244 ............................................................................................. 15, 19 2 Phelan v. Superior Court of San Francisco 3 (1950) 35 Cal.2d 363 ........................................................................................................... 17 4 Riggs v. City of Oxnard (1984) 154 Cal.App.3d 526 ........................................................................................... 10, 15 5 Rio Vista Farm Bureau Ctr. v. County of Solano 6 (1992) 5 Cal.App.4th 351 .................................................................................................... 11 7 San Elijo Ranch v. County of San Diego 8 (1998) 65 Cal.App.4th 608 ............................................................................................ 16, 17 9 Sheetz v. County of El Dorado (2022) 84 Cal.App.5th 394 ............................................................................................ 18, 19 10 Stone v. Bd. of Supervisors 11 (1988) 205 Cal.App.3d 927 ................................................................................................. 11 12 Wilhelm v. Pray, Price, Williams & Russell 13 (1986) 186 Cal.App.3d 1324 ................................................................................................. 7 14 Statutes 15 Code of Civil Procedure section 430.10 ...................................................................................... 7 16 Code of Civil Procedure section 430.10, subdivision (e) ............................................................ 7 17 Code of Civil Procedure section 430.50, subdivision (a) ............................................................ 7 18 Code of Civil Procedure section 1085 ......................................................................................... 9 19 Ordinance Code section 19.06.020 ...................................................................................... 11, 12 20 Ordinance Code section 19.100.050 .......................................................................................... 13 21 Ordinance Code section 19.100.070 .......................................................................................... 12 22 Ordinance Code section 19.100.080 .......................................................................................... 13 23 Ordinance Code section 19.100.090 .......................................................................................... 13 24 Ordinance Code section 19.100.090, subdivision (I) ................................................................. 15 25 Ordinance Code section 19.102.030 .......................................................................................... 15 26 27 Ordinance Code section 19.102.090 .......................................................................................... 15 28 Ordinance Code section 19.102.170, subdivision (B) ............................................................... 15 FINCH, THORNTON & 4 BAIRD, LLP 4747 Executive Drive - Suite 700 San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE Ordinance Code section 19.104.020 .......................................................................................... 13 1 Ordinance Code section 19.104.030 .......................................................................................... 13 2 3 Ordinance Code section 19.104.040 .......................................................................................... 13 4 Ordinance Code section 19.114.050 .......................................................................................... 14 5 Ordinance Code Chapter 19.100 .................................................................................... 12, 13, 18 6 Ordinance Code Chapter 19.104 .................................................................................... 12, 18, 19 7 Ordinance Code Chapter 19.104 .......................................................................................... 18, 19 8 Ordinance Code Chapter 19.114 .................................................................................... 14, 18, 19 9 Public Resources Code section 2716 ......................................................................................... 17 10 Public Resources Code section 2774.1 ...................................................................................... 16 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FINCH, THORNTON & 5 BAIRD, LLP 4747 Executive Drive - Suite 700 San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE 1 I 2 INTRODUCTION 3 Petitioner Jean-Pierre Biane’s (“Petitioner”) First Amended Verified Petition for Writ 4 of Mandate and Complaint for Declaratory Relief (“Petition”) improperly seeks to usurp the 5 discretionary code enforcement authority of the County of Kern (“County”). The County has 6 already taken reasonable action to respond to Petitioner’s complaints regarding the operation of 7 a duly permitted aggregate mine near his farm. Nevertheless, Petitioner now asks this court to 8 force the County to prohibit the use of a public road Petitioner would prefer to be reserved 9 exclusively for his own business operations. The law does not allow Petitioner to impose his 10 judgment on the County. 11 Further, Petitioner has not, and cannot, allege that he exhausted his administrative 12 remedies, a condition precedent to the Petition. The mine at issue was approved in 2016. 13 Petitioner does not allege he objected to the project at a public hearing or appealed the County 14 Commission’s approval to the County Board of Supervisors. 15 Finally, the Petition seeks purely equitable relief in the form of three petitions for writ 16 of mandate and one cause of action for declaratory relief. However, Petitioner explicitly 17 alleges that he has suffered monetary damages as a result of the trucks from the project passing 18 by his farm, and recently filed a separate lawsuit in attempt to collect for those damages. 19 Petitioner cannot seek equitable relief where he has an adequate legal remedy available. 20 Accordingly, the court should sustain the County’s demurrers to Petitioner’s First, 21 Second, and Third Causes of Action for writ of mandate, and Fourth Cause of Action for 22 declaratory relief, on the grounds that each Cause of Action fails to allege facts sufficient to 23 constitute a cause of action. The County met and conferred with Petitioner regarding the above 24 pleading defects prior to his filing the Petition. Yet, the defects remain unresolved and are 25 unresolvable by further amendment. Thus, the County requests this court sustain the demurrer 26 without leave to amend as to each Cause of Action. 27 / / / / / 28 FINCH, THORNTON & 6 BAIRD, LLP 4747 Executive Drive - Suite 700 San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE 1 II 2 AUTHORITY FOR DEMURRER 3 “The sufficiency of a petition in a mandamus proceeding can be tested by demurrer.” 4 (Hilton v. Board of Supervisors (1970) 7 Cal.App.3d 708, 713.) Code of Civil Procedure 5 section 430.10 provides, in pertinent part: 6 The 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 7 grounds: 8 * * * 9 (e) The pleading does not state facts sufficient to constitute a cause of action. A demurrer “may be taken to the whole complaint or cross-complaint or to any 10 of the causes of action stated therein.” 11 (Code Civ. Proc., § 430.50, subd. (a).) When a party fails to state facts sufficient to constitute 12 a cause of action, the pleading is susceptible to general demurrer. (Code Civ. Proc., § 430.10, 13 subd. (e); Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1330.) In 14 considering a demurrer, the court takes into account facts pleaded, but disregards legal 15 conclusions. (Gruenberg v. Aetna Insurance Company (1973) 9 Cal.3d 566, 572.) 16 If a pleading is subject to demurrer, the plaintiff bears the burden of showing how it can 17 be amended to remedy the legal defects. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) If 18 there is no “reasonable possibility” that the plaintiff can cure a defective claim by amendment, 19 the court should sustain the demurrer without leave to amend. (Heckendorn v. City of San 20 Marino (1986) 42 Cal.3d 481, 486.) 21 III 22 FACTUAL BACKGROUND 23 The Petition arises out of the County’s approval of a sand and gravel mine known as 24 the Solari Sand and Gravel Project (“Project”). (Petition, ¶ 19.)1 The Project is owned and 25 operated by Granite Construction Company (“Granite”) and is in an unincorporated area of 26 Kern County, with a common street address of 8999 Capacity Street, Arvin, California 93203. 27 28 1 Unless otherwise indicated, all references to “¶” hereinafter refer to the Petition. FINCH, THORNTON & 7 BAIRD, LLP 4747 Executive Drive - Suite 700 San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE 1 (¶ 19.) In or around September 2008, Granite submitted an Application for a Conditional Use 2 Permit (“CUP”), and an Application for Surface Mining Permit and/or Reclamation Plan 3 (“Mining Application”) to the County Planning and Natural Resources Department (“Planning 4 Department”), who prepared an environmental evaluation for the Project under the California 5 Environmental Quality Act (“CEQA”), with a recommendation for consideration at the Kern 6 County Planning Commission (“Planning Commission”). (See concurrently filed Request for 7 Judicial Notice (“RJN”), Ex. 1, and ¶ 19.) 8 The County determined Granite’s Mining Application was complete in or around July 9 2009 and began preparing an Environmental Impact Report (“EIR”) for the Project. (¶ 32.) As 10 part of the six-year EIR process, the County created a Mitigation Monitoring and Reporting 11 Program (“MMRP”) and provided specific steps detailing how Granite was conditioned to 12 comply with each mitigation measure. (RJN, Ex. 3.) The County’s Planning Commission 13 approved the Project on or about September 22, 2016. (RJN, Ex. 4; ¶ 44.) In doing so, the 14 County conditioned its approval of the Project on Granite operating in “substantial 15 conformance” with the final approved Surface Mining and Reclamation Plan (“Mining Plan”)2 16 and all conditions of approval, including the MMRP. (RJN, Ex. 4.) 17 Petitioner contends the County failed to enforce the terms of the CUP, Mining Plan, 18 and MMRP. (¶¶ 90, 97, 102, 110.) Specifically, he alleges the CUP and Mining Plan provide 19 the only roads any traffic to or from the Project can ever use, and prohibit any use of Rancho 20 Road, the public road where Petitioner’s farm is located. (¶¶ 37, 46.) Petitioner objects to and 21 alleges to have seen an unspecified number of Project vehicles using Rancho Road. (¶ 46.) 22 Each of Petitioner’s four causes of action seek to compel the County to enforce Petitioner’s 23 judgment, and interpretation of the terms of the CUP and the Mining Plan, by halting Granite’s 24 entire operation until Petitioner is personally satisfied all use of Rancho Road will stop. (See 25 ¶¶ 93, 106, 117.) These requests must fail. 26 / / / / / 27 2 After County approval, Granite’s Mining Application became an approved Surface Mining and Reclamation Plan, 28 subject to conditions of approval. (See RJN, Ex. 4, p. 2, ¶ (f).) FINCH, THORNTON & 8 BAIRD, LLP 4747 Executive Drive - Suite 700 San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE 1 IV 2 THE PETITION FAILS TO STATE A CAUSE OF ACTION FOR WRIT OF MANDATE 3 Petitioner’s First, Second, and Third Causes of Action each seek a writ of mandate 4 pursuant to Code of Civil Procedure section 1085 to compel the County to enforce Petitioner’s 5 interpretation of the CUP, Mining Application, and MMRP. The three basic requirements for 6 the issuance of a writ are: (1) a clear, present, and usually ministerial duty upon the part of the 7 respondent; (2) a clear, present, and beneficial right in the petitioner to the performance of that 8 duty; and (3) the absence of any other plain, speedy, and adequate remedy. (Monterey 9 Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 10 18; County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 593.) 11 A. Oversight of Compliance With the Mining Application Is Not a Ministerial Duty and Petitioner Cannot 12 Compel the County to Exercise Its Discretion in Any Particular Manner 13 Petitioner’s first three Causes of Action fail to state a claim for writ of mandate because 14 they do not allege a clear, present, and usually ministerial duty on the part of the County. The 15 County has discretionary authority to determine if a violation of the MMRP, CUP, or Mining 16 Plan exists, and Petitioner cannot usurp that authority. 17 1. The County’s Demurrer Should Be Sustained as to the First, Second, and Third Causes 18 Causes of Action Because There Is No Ministerial Duty to Act 19 Petitioner has the burden to establish the existence of a ministerial duty on the part of 20 the County to act as Petitioner demands. (MacLeod v. Long (1930) 110 Cal.App. 334, 339 21 [294 P. 54].) “A ministerial act is one that a public functionary ‘is required to perform in a 22 prescribed manner in obedience to the mandate of legal authority,’ without regard to his or her 23 own judgment or opinion concerning the propriety of such act.” (Monterey Coastkeeper, supra, 24 76 Cal.App.5th at p. 19.) In contrast, authority is discretionary where it confers power on a 25 public agency to act officially according to the dictates of its own judgment. (Fair Education 26 Santa Barbara v. Santa Barbara Unified School Dist. (2021) 72 Cal.App.5th 884, 893-894 27 (“Fair Education”).) Importantly, the term “may” is permissive and grants the public agency 28 FINCH, THORNTON & 9 BAIRD, LLP 4747 Executive Drive - Suite 700 San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE 1 discretion with regard to the statutory command. (See Kelsey v. Colwell (1973) 30 Cal.App.3d 2 590, 593 [statute providing a City or County “may establish” an agricultural preserve does not 3 require it to do so].) 4 Where a function is discretionary, the law is clear, a public entity cannot be compelled 5 to exercise that discretionary decision in any particular manner. (See Riggs v. City of Oxnard 6 (1984) 154 Cal.App.3d 526, 530 [municipalities have broad discretion to determine the most 7 appropriate mode of enforcing ordinances and a writ of mandate will not issue to compel that 8 discretion be exercised in a particular way]; Citizens for Odor Nuisance Abatement v. City of 9 San Diego (2017) 8 Cal.App.5th 350, 366.) 10 i. The First Cause of Action Does Not Allege a Ministerial Duty to Find Granite in Violation of the MMRP 11 12 Petitioner’s First Cause of Action focuses on a single mitigation measure in the MMRP, 13 mitigation measure 4.13-3. (¶ 90.) Petitioner alleges mitigation measure 4.13-3 requires the 14 County to videotape roadway segments to be used for Project-related travel and restore those 15 roadways upon Project completion. (¶¶ 89, 90.) Petitioner claims the County failed to 16 videotape Rancho Road, in violation of the MMRP and CEQA, and seeks an order “compelling 17 the County to enforce all mitigation measures” and “directing the County to suspend Granite’s 18 active mining operations until such County enforcement and full mitigation measure 19 compliance by Granite is achieved.” (¶ 93.) 20 However, the County has discretion to determine whether Granite is in violation of the 21 MMRP. The MMRP is incorporated as a condition of approval to Granite’s Mining Plan. The 22 Resolution approving the Project states, in pertinent part: 23 [I]t is the decision of the Planning Commission that the application herein described be, and hereby, recommends the Board of Supervisors … ADOPT 24 Mitigation Measure Monitoring Program and APPROVE, as recommended by Staff, the applications for the reasons specified in this Resolution with 25 development to be in substantial conformity with the approved [Mining Plan]3, and the approved [Mining Plan] shall be revised to include the following 26 27 3 The Resolution refers to the “approved plan.” (RJN, Ex. 4, p. 4.) The “approved plan” means the approved Mining Application (i.e., the approved [Application for Surface Mining Permit and/or Reclamation] Plan). (RJN, Ex. 4, p. 28 2, ¶ (f).) FINCH, THORNTON & 10 BAIRD, LLP 4747 Executive Drive - Suite 700 San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE conditions of approval: 1 * * * 2 (37) All mitigation measures included in the adopted Mitigation Measure 3 Monitoring Program for the Solari Sand and Gravel Project by Granite Construction … are hereby incorporated as Conditions of Approval. 4 5 (See RJN, Ex. 4, at pp. 3-7 [emphasis added].) The Resolution effectuates the MMRP by 6 incorporating it into the conditions of approval of the Mining Application, with which Granite 7 must “substantially” conform. 8 The determination as to whether Project operations are in “substantial conformity” with 9 the Mining Plan is discretionary, as it is based on the County’s judgment. (See Fair 10 Education, supra, 72 Cal.App.5th at p. 893.) It is well established that public agencies have 11 substantial discretion to determine the most appropriate means to enforce an MMRP and assess 12 compliance with adopted mitigation measures. (See Stone v. Bd. of Supervisors (1988) 205 13 Cal.App.3d 927, 935-937; Rio Vista Farm Bureau Ctr. v. County of Solano (1992) 5 14 Cal.App.4th 351, 380.) Kern County Ordinance Code (“Ordinance Code”) section 19.06.020 15 expressly grants the County Planning Director authority to interpret compliance with Mining 16 Plan conditions of approval, such as the MMRP. (See Lodgment of Authorities (“LOA”), Ex. 17 14, Ord. Code § 19.06.020 [“The planning director shall be vested with the authority to 18 administer this title.… Where there is a question as to the meaning or the intent of any 19 requirement of this title, including interpretations or conditions of approval required in 20 conjunction with the approval of any ministerial or discretionary permit authorized therein, the 21 planning director shall provide any necessary interpretation, and the decision of the planning 22 director shall be final.”].) Assessing “substantial conformity” requires a qualitative 23 interpretation of the degree of compliance based on the various conditions on Project 24 development. The Mining Plan is the result of thousands of pages of submissions and studies 25 relating to potential adverse environmental impacts, land use concerns, and public safety 26 hazards, among other things. (See RJN, Ex. 1.) Compliance with the MMRP is just one of 37 27 distinct conditions of approval of the Mining Plan. (RJN, Ex. 4, at pp. 3-7.) The MMRP alone 28 FINCH, THORNTON & 11 BAIRD, LLP 4747 Executive Drive - Suite 700 San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE 1 contains hundreds of unique requirements. (See RJN, Ex. 3.) 2 The County has discretion to determine both whether an alleged violation of the Mining 3 Plan, including the MMRP, exists, and whether an alleged violation, if true, arises to 4 “substantial” nonconformity with the entire Mining Plan. The County has considered 5 Petitioner’s complaints, which relate to just one mitigation measure contained in one 6 document, and determined that his allegations, even if true, do not amount to a failure to 7 substantially conform with the Mining Plan. (¶ 90.) Petitioner cannot commandeer the 8 County’s authority to make this decision, which is expressly reserved to the County Planning 9 Director. (See LOA, Ex. 14, Ord. Code § 19.06.020.) The Petition does not and cannot allege 10 a ministerial duty on the part of the County to “suspend Granite’s active mining operations” or 11 otherwise require the County to take his desired enforcement action. (¶ 93.) Thus, the First 12 Cause of Action fails to state facts sufficient to constitute a cause of action for writ of mandate. 13 ii. The Second Cause of Action Does Not Allege a Ministerial Duty to Find Granite in 14 Violation of Ordinance Code Chapters 19.100 and 19.104 15 The Second Cause of Action alleges Ordinance Code Chapters 19.100 and 19.104 16 create ministerial duties to require Project traffic not use Rancho Road. (¶¶ 105, 106.) 17 Petitioner asks this court to “direct[] the County to comply with its obligations set forth” in 18 Chapters 19.100 and 19.104, including by issuing penalties and revoking the Mining Plan. (¶¶ 19 105, 106.) Petitioner’s interpretations of these Chapters are meritless. 20 The cited Chapters do not create any duty that the County is “required to perform in a 21 prescribed manner … without regard to [its] own judgment or opinion concerning the propriety 22 of such act.” (Fair Education, supra, 72 Cal.App.5th at p. 893.) Rather, Chapter 19.100 23 creates several layers of discretion for enforcement actions: “Either the building official or the 24 planning director may initiate enforcement action pursuant to this section.” (See LOA, Ex. 11, 25 Ord. Code § 19.100.070 [emphasis added].) If “the building official finds the surface mining 26 operation is not in compliance,” a discretionary decision, the building official “may” notify the 27 operator, and the Planning Director “may” issue an order requiring compliance. (Ibid.) Only if 28 FINCH, THORNTON & 12 BAIRD, LLP 4747 Executive Drive - Suite 700 San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE 1 the building official finds noncompliance, and chooses to issue a notice, does County set a date 2 for a public hearing in front of the Planning Commission. (See LOA, Ex. 11, Ord. Code § 3 19.100.080.) If such a hearing is set, the Planning Commission “may” take a series of actions, 4 including revocation of permits, or issue fines. (See LOA, Ex. 11, Ord. Code § 19.100.090.) 5 Finally, only where the “planning director determines that a proposed amendment” to an 6 approved reclamation constitutes a “substantial deviation” (e.g., “increases in the amount of 7 surface area to be disturbed”), will the amendment be considered by the Planning Commission 8 at a regularly scheduled public hearing. (See LOA, Ex. 11, Ord. Code § 19.100.050.) 9 Clearly, the cited Chapters create discretionary authority, in that they allow the County 10 to act officially according to the dictates of its own judgment. (See Fair Education, supra, 72 11 Cal.App.5th at pp. 893-894.) Petitioner does not, and cannot, cite to any provision within 12 Chapter 19.100 from which he contends these ministerial duties are created. That is because 13 no such provisions exist. 14 Similarly, Petitioner summarily concludes Chapter 19.104 creates a ministerial duty to 15 enforce provisions of the CUP, including exclusive use of the specified access route. (¶ 97.) 16 Petitioner again fails to cite to any provision of Chapter 19.104 from which it alleges such a 17 ministerial duty is created. Rather, Chapter 19.104 makes clear its purpose “is to establish 18 procedures and general standards for the review and approval of conditional use permits 19 authorized by various sections of this title.” Unsurprisingly, the Chapter pertains only to the 20 content of applications (See LOA, Ex. 12, Ord. Code § 19.104.020), review and approval 21 procedures (See LOA, Ex. 12, Ord. Code § 19.104.030), and basis for approval (See LOA, Ex. 22 12, Ord. Code § 19.104.040). The County issued the CUP for the Project in September 2016, 23 at which point the “review and approval” of the CUP was complete. (¶ 44.) Chapter 19.104 24 simply does not apply, let alone create a ministerial duty. 25 Petitioner’s self-serving and conclusory reference to Chapters 19.100 and 19.104 are 26 insufficient to satisfy Petitioner’s burden to show a ministerial duty. The Second Cause of 27 Action does not, and cannot, allege facts sufficient to state a cause of action for writ of 28 FINCH, THORNTON & 13 BAIRD, LLP 4747 Executive Drive - Suite 700 San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE 1 mandate. 2 iii. The Third Cause of Action Does Not Allege a Ministerial Duty to Find Granite in Violation of Ordinance Code Chapter 19.114 3 4 Petitioner’s Third Cause of Action alleges that the County has a ministerial duty to 5 abate Granite’s “public nuisance” under Ordinance Code Chapter 19.114. (¶ 112.) However, 6 Ordinance Code section 19.114.050 provides, if a violation of a permit condition occurs, “…an 7 official notice to comply and/or compliance letter may be given.” (Emphasis added.) As 8 discussed above, the determination of whether use of Rancho Road constitutes a violation 9 requires the County to find that activity results in a “substantial” nonconformance with the 10 Mining Plan, a discretionary decision requiring judgment. Where that discretionary 11 determination is made, and correction of the violation(s) does not occur within the specified 12 period, the “building official may initiate revocation proceedings in accordance with the 13 provisions of Section 19.102.020 of this title.” (See LOA, Ex. 13, Ord. Code, § 19.114.050, 14 emphasis added.) Again, Petitioner’s conclusory allegation that Chapter 19.114 creates a 15 ministerial duty is both incorrect and insufficient to satisfy Petitioner’s burden to show a 16 ministerial duty. Thus, the Third Cause of Action fails to state facts sufficient to constitute a 17 cause of action. 18 2. The County Has Further Discretion To Remedy Violations and Petitioner Cannot Compel 19 The County to Take Further Action in Any Particular Manner 20 In addition to discretion to determine whether a “substantial” violation of the MMRP, 21 CUP, or Mining Plan has occurred, the County has a further level of discretion as to the 22 appropriate enforcement action to take if a violation is found. Even if Petitioner is correct that 23 Granite is in violation of the MMRP, CUP, and Mining Plan (which the County disputes), he 24 cannot direct the County to make any particular response. Accordingly, the First, Second, and 25 Third Causes of Action, which seek to order the County to revoke Granite’s CUP and/or 26 suspend its mining operations, must fail. 27 The Ordinance Code provides the County a wide range of enforcement actions it can 28 FINCH, THORNTON & 14 BAIRD, LLP 4747 Executive Drive - Suite 700 San Diego, CA 92121 MEMORANDUM IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO PLAINTIFF’S FIRST (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE 1 take should it conclude the Project is not in compliance with the Mining Plan. This includes 2 “[s]uch order or orders as may be appropriate to correct the violation or default.” (See LOA, 3 Ex. 11, Ord. Code § 19.100.090, subd. (I).) Petitioner admits the County has acted: it required 4 Granite to install signs indicating the proper haul route. (See ¶¶ 58, 69, 75-78.) The County 5 has exercised its discretion in a manner it deems appropriate to abate the alleged harm. (See 6 LOA, Ex. 11, Ord. Code § 19.100.090, subd. (I).) Petitioner is not permitted to substitute his 7 judgment for that of the County based on his personal irritation with the use of a public road. 8 (See Riggs, supra, 154 Cal.App.3d at p. 530.) Thus, he cannot allege a clear, present, and 9 ministerial duty on the part of the County, one of three required elements for a writ of mandate, 10 and his First, Second, and Third Causes of Action fail to state facts sufficient to constitute a 11 cause of action. 12 B. The County’s Demurrer to Petitioner’s First, Second, and Third Causes of Action Should Be Sustained Because Petitioner 13 Has an Adequate Remedy at Law Through Administrative Remedies 14 Petitioner also cannot claim he lacks a plain, speedy, and adequate remedy at law. 15 Petitioner does not allege that he availed himself of the administrative relief process provided 16 by the County, despite ample opportunity to do so. 17 It is well established that the availability of an adequate administrative remedy 18 precludes issuance of a writ of mandate. (Monterey Coastkeeper, supra, 76 Cal.App.5th at pp. 19 13-18; City of Culver City v. Cohen (2017) 14 Cal.App.5th 1,