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1 SARAH J. KNECHT, City Attorney (SBN 138275)
Tava Ostrenger, Acting City Attorney (SBN 249964)
2 Robin L. Lewis, Assistant City Attorney (SBN 199077)
740 State Street, Suite 201
3 Post Office Box 1990
Santa Barbara, California 93102-1990
4 Telephone: (805) 564-5326
Fax: (805) 564-5426
5 Email: tostrenger@santabarbaraca.gov
rlewis@santabarbaraca.gov
6 Exempt from fees pursuant to
Attorneys for Respondent City of Santa Barbara
7 Government Code § 6103
8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9 COUNTY OF SANTA BARBARA
10 ANACAPA DIVISION
740 State Street, Suite 201 P.O. Box 1990
11
Santa Barbara, California 93102-1990
Office of the City Attorney
City of Santa Barbara
12 LEILA J. NOËL, Trustee of the Noël Living ) CASE NO. 24CV01633
Trust Originally Dated April 6, 2010, As )
13 Amended and Restated March 18, 2019, ) CITY OF SANTA BARBARA’S
) OPPOSITION TO PETITIONER’S
14 Petitioner, ) MOTION FOR PRELIMINARY
) INJUNCTION
15 vs. )
) Date: May 7, 2024
16 CITY OF SANTA BARBARA, ) Time: 9:00 a.m.
) Dept: 5
17 Respondent. )
)
18 ) Complaint filed: 3/20/2024
) Assigned to: Judge Colleen K. Sterne, Dept. 5
19 KOOTSTRA SBA, L.P., a California limited )
partnership; HOWARD KOOTSTRA, an )
20 individual; ELAINE KOOTSTRA, an )
individual; CHRISTIAN MENARD, an )
21 individual; and JENNA KOOTSTRA )
MENARD, an individual, )
22 )
Real Parties in Interest. )
23 )
24
25 Respondent City of Santa Barbara (hereinafter “City” or “Respondent”) submits the
26 following opposition to Petitioner Leila J. Noël, Trustee of the Noël Living Trust Originally
27 Dated April 6, 2010, As Amended and Restated March 18, 2019’s motion for Preliminary
28 Injunction, as follows:
____________________________________ 1
Leila J. Noel, etc. v. City of Santa Barbara, et al.
City of Santa Barbara’s Opposition to Motion for Preliminary Injunction
1 I. INTRODUCTION
2 It is well established by California law:
3 A trial court may not grant a preliminary injunction, regardless of the balance of
4 interim harm, unless there is some possibility that the plaintiff would ultimately
5 prevail on the merits of the claim. [Citation.] Unless potential merit is conceded, an
6 appellate court must therefore address that issue when reviewing an order granting a
7 preliminary injunction. (Butt v. State of California (1992) 4 Cal.4th 668, 677–678,
8 15 Cal.Rptr.2d 480, 842 P.2d 1240 (Butt ).)
9 (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1463.)
10 The only issue in this matter is whether the City was required to provide petitioner Leila J.
740 State Street, Suite 201 P.O. Box 1990
11 Noël (“Petitioner” or “Noël”) with notice of the Single Family Design Board hearings regarding
Santa Barbara, California 93102-1990
Office of the City Attorney
City of Santa Barbara
12 the project at the property at 155 Cedar Lane owned by Real Parties in Interest (“Kootstra”).
13 Notice was not required by the Santa Barbara Municipal Code (SBMC), by due process law, or
14 by any alleged settlement reached between the petitioner and the previous owners of 155 Cedar
15 Lane. For these reasons, Noël is unlikely to prevail on the merits and, thus, the requested
16 preliminary injunction cannot be granted.
17 II. STATEMENT OF FACTS
18 There are several factual assertions made by Noël’s expert, Jarret Gorin, which are simply
19 wrong. They are addressed below.
20 Gorin declares (Declaration of Jarret Gorin [Gorin Dec.], 3:17-18), that a Minor Zoning
21 Exception (“MZE”) must be approved for a first story deck. This, however, is irrelevant because
22 the proposed patio, which is proposed to be level with the finished grade created by the retaining
23 wall, did not meet the code’s definition of a deck, and, therefore, the MZE identified in SBMC
24 30.140.090.D.2. did not apply. (See Declaration of Edward Hamilton-Rolle In Support of
25 Respondent City of Santa Barbara’s Opposition to Motion for Preliminary Injunction “Hamilton-
26 Rolle Dec.”), ¶3, Exhibts 1 and 3, attached to Hamilton-Rolle Dec.; Exhibit A to Request for
27 Judicial Notice filed concurrently herewith (“RJN”).) A deck is typically made of wood or a
28
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Leila J. Noel, etc. v. City of Santa Barbara, et al.
City of Santa Barbara’s Opposition to Motion for Preliminary Injunction
1 wood-like material and is generally a raised platform supported by posts set in footings.
2 (Hamilton-Rolle Dec., ¶5.)
3 Gorin also states that the two proposed “decks encroach into the ten-foot interior setback.”
4 (Gorin Dec., 4:12.) Again, the proposed patios are not “decks.” The site plan shows a northern
5 patio and a southern patio in the interior setback. They are comprised of pavers on grade, not
6 footings that support an elevated platform. (See Hamilton-Rolle Dec., ¶ 6, Exhibits 1 and 3,
7 attached to Hamilton-Rolle Dec. Hence, they are not decks and an MZE was not required
8 because the patios in question do not meet the definition of a deck.
9 Noël also contends that the grading for the property should have triggered notice. There
10 was 150 cubic yards of grading done for this property but it did not reach the 250 cubic yards
740 State Street, Suite 201 P.O. Box 1990
11 noticing requirement set forth in SBMC 22.040.A.6. (See Exhibit H to RJN; Hamilton-Rolle
Santa Barbara, California 93102-1990
Office of the City Attorney
City of Santa Barbara
12 Dec., ¶7, Exhibit 8 to Hamilton-Rolle Dec.)
13 III. ARGUMENT
14 A. The SBMC Did Not Require Notice.
15 The limitation on projects requiring a noticed public hearing goes back to at least 2008
16 when Chapter 22.69 was added to Title 22 of the SBMC. (See Exhibit E to RJN, Ordinance
17 5444, page 3, attached to the Request for Judicial Notice (RJN) filed concurrently herewith.)
18 Then, as now, the review jurisdiction of the SFDB was broader than the list of projects that
19 required a noticed public hearing. Back in 2008, the projects that needed a noticed public
20 hearing were those listed in current section 22.69.040 A. 1, 2, 3, 6, and 7 (except there was no
21 reference to additional dwelling units or additional residential units). (See Exhibit D to RJN,
22 Ord. 5416, page 16.) Section 22.69.040 was amended in 2008 to add reference to “related
23 accessory structures” to the exceptions stated in A.2 and A.3 of that section. The notice
24 boundary was also increased from 100 to 300 feet. (See Exhibit E to RJN, Ord. 5444, page 4,
25 attached to RJN.) In 2010, the list was expanded to include a requirement for review of the
26 addition of over 150 sq/ft to existing second or higher stories (current A.4.) and projects
27 involving application for exception to parking requirements (current A.8.). (See Exhibit F to
28 RJN, Ord. No. 5518, page 1-2.) The last amendment to the section was in 2017. This latest
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Leila J. Noel, etc. v. City of Santa Barbara, et al.
City of Santa Barbara’s Opposition to Motion for Preliminary Injunction
1 amendment added the requirement for notice of projects that involve a minor zoning exception
2 (current A.5.) and also added the references to Additional Residential Units and Accessory
3 Dwelling Units. (See Exhibit G to RJN, Ord. No. 5798, page 39 -40.) 1
4 As shown below, the subject project did not require a minor zoning exception (MZE) or
5 any other circumstance requiring notice.
6 B. The Project Did Not Involve a Minor Zoning Exception or Any Other
7 Circumstance Triggering a Notice Requirement.
8 As indicated above, the plan sheets for the subject project will show that this project did not
9 involve an MZE or any other criteria or circumstance that would have triggered a notice
10 requirement for this project. These documents are attached to the Declaration of Ted Hamilton-
740 State Street, Suite 201 P.O. Box 1990
11 Rolle (Hamilton-Rolle Dec.), Project Planner for the City of Santa Barbara Community
Santa Barbara, California 93102-1990
Office of the City Attorney
City of Santa Barbara
12 Development Department. Those plan sheets are also listed below and will be included in the
13 Administrative Record for the Court’s review of the writ petition.
14 BLD2021-02281 Issued Plan Sheets:
15 Exhibit 1 - Site plan showing hardscape and lighting: Sheet L1.0;
16 Exhibit 2 - Site plan showing the planting plan: Sheet L2.0;
17 Exhibit 3 - Site Sections showing retaining wall in eastern interior setback: Sheet L4.0;
18 Exhibit 4 - Pergola perspective: Sheet A117;
19 Exhibit 5 - Pergola Plan View: A118;
20 Exhibit 6 - Pergola Section View: A120;
21 Exhibit 7 - Pergola Louver Detail: A122;
22 Exhibit 8 - Civil plan showing grading not to exceed 250 CY quantity: Sheet C-0.1; and
23 Exhibit 9 - Grading Plan – Sheet C-2.1.
24 The sheets will show that although the retaining walls and patio protrude more than 10
25 inches above grade, there is no applicable Minor Zoning Exception pursuant to Title 30 of the
26
27
1
At page 39 of the ordinance, it states that Ord. No. 5798 amends a long list of municipal code
28 sections for conformity to the New Zoning Ordinance.
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Leila J. Noel, etc. v. City of Santa Barbara, et al.
City of Santa Barbara’s Opposition to Motion for Preliminary Injunction
1 Santa Barbara Municipal Code (SBMC). The proposed patio, which is proposed to be level with
2 the finished grade created by the retaining wall, did not meet the code’s definition of a deck, and,
3 therefore, the MZE identified in SBMC 30.140.090.D.2.a (below) does not apply. SBMC
4 30.300.160 defines a patio as: “A hardscaped (e.g., concrete, tile, brick, stone, wood, etc.) area,
5 constructed with a finished surface no more than 10 inches above grade, which may or may not
6 be attached to another structure and intended for indoor-outdoor living and recreation. A patio
7 may be surrounded by walls or roofed, but not both.” (Exhibit B to RJN.) As indicated in
8 express language of 30.300.160, the “finished surface” is to be “no more than 10 inches above
9 grade,” which indicates that while the grade may be raised with fill, the distance between the top
10 of the hardscape itself cannot exceed 10 inches in height above the grade.
740 State Street, Suite 201 P.O. Box 1990
11 Also, contrary to Noël’s position that the proposed pergola is an accessory building, a
Santa Barbara, California 93102-1990
Office of the City Attorney
City of Santa Barbara
12 pergola is defined within SBMC Section 30.300.200 “T” as follows:
13 Trellis. A structure or frame supporting open latticework, at least 50%
14 open to the sky with uniformly distributed openings. A trellis is sometimes
15 referred to as a pergola or arbor. A trellis is not an accessory building.
16 (Exhibit C to RJN (emphasis added.) Thus, the plans show that the proposed pergola met this
17 definition, which expressly excludes a pergola as an accessory building. (See Hamilton-Rolle
18 Dec., ¶8.)
19 While the anticipated grading for the project was to exceed more than 150 cubic yards, as
20 stated above, it did not reach the 250 cubic yards noticing requirement set forth in SBMC
21 30.69.040.A.6. (See Exhibit H to RJN, Hamilton-Rolle Dec., ¶7, Exhibit 8 to Hamilton-Rolle
22 Dec.) Also, although the retaining wall was anticipated to rise over seven feet over natural
23 grade, it was not, as Noël contends, proposed to be located in the rear setback. (Hamilton-Rolle
24 Dec., ¶9, Exhibit 1 to Hamilton-Rolle Dec.)
25 Without explanation, Noël contends that the project was not compatible with the
26 Neighborhood Preservation Ordinance. However, the SFDB made the required findings under
27 the Ordinance for compatibility at the 10/12/2020 Project Design Approval hearing. (See
28 Exhibit C to Petition, page 2.)
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Leila J. Noel, etc. v. City of Santa Barbara, et al.
City of Santa Barbara’s Opposition to Motion for Preliminary Injunction
1 C. The 2005 Litigation and Settlement Did Not Bind Successors in Interest to 155
2 Cedar Lane.
3 A covenant is said to run with the land if it binds not only the person who entered into it,
4 but also later owners and assigns who did not personally enter into it. (Civil Code § 1460.) “In
5 California, only covenants specified by statute run with the land (§ 1461), primarily those
6 described in sections 1462 and 1468.” (Citizens for Covenant Compliance v. Anderson (1995)
7 12 Cal.4th 345, 353.) The instrument containing such covenants binding successors in interest
8 must be “recorded in the office of the recorder of each county in which such land or some part
9 thereof is situated.” (Civil Code §1468 (d).)
10 Noël has not alleged that such an instrument has been recorded in Santa Barbara County.
740 State Street, Suite 201 P.O. Box 1990
11 She has also not attached any instruments containing such a covenant to any pleadings or other
Santa Barbara, California 93102-1990
Office of the City Attorney
City of Santa Barbara
12 documents filed with this Court. Therefore, the 2005 proceedings and any settlements or
13 agreements arising therefrom have no bearing on the issues in this case, and do not provide a
14 basis for requiring that notice be given to Noël for SFDB review of the subject project.
15 D. Noël Has Not Alleged Any Facts Showing Entitlement to Due Process
16 Protections Under Horn or Any Other Law.
17 “Due process principles require reasonable notice and opportunity to be heard before
18 governmental deprivation of a significant property interest.” (Horn v. County of Ventura (1979)
19 24 Cal.3d 605, 612 [emphasis added].) “[C]onstitutional notice and hearing requirements are
20 triggered only by governmental action which results in ‘significant’ or ‘substantial’ deprivations
21 of property, not by agency decisions having only a de minimis effect on land. Nor would action
22 involving only the nondiscretionary application of objective standards entitle a landowner to
23 such protections.” (Id. at 616.)
24 Noël has failed to state a property interest for which she is being deprived through the
25 design review process and for which she would be entitled to an administrative hearing and
26 appeal. The mere fact that she owns property adjacent to the subject property is insufficient.
27 The petition and Noël’s brief clearly demonstrate that the interest which she seeks to
28 protect is the views from her residence. Adjacent property owners in California, however, have
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Leila J. Noel, etc. v. City of Santa Barbara, et al.
City of Santa Barbara’s Opposition to Motion for Preliminary Injunction
1 no natural right to an unobstructed view and “the law is reluctant to imply such a right.” (Miller
2 & Starr, California Real Estate, “Easements”, section 105, pp. 415-416, citing numerous cases,
3 including Noronha v. Stewart (1988) 199 Cal.App.3d 485, 492.) California law does not
4 recognize a view as a property interest and neither does the Santa Barbara Municipal Code have
5 any ordinance protecting views or privacy interests. Thus, Petitioner has failed to state an
6 interest entitled to due process protection.
7 E. The So-Called Expert Opinion Testimony of Jarrett Gorin Should Be
8 Excluded.
9 Noël has identified Jarret Gorin, a certified land use planner, as an expert witness in this
10 case. The Declaration of Jarret Gorin should be excluded on the grounds discussed below and in
740 State Street, Suite 201 P.O. Box 1990
11 Motion in Limine No. 1 and the objections filed concurrently herewith.
Santa Barbara, California 93102-1990
Office of the City Attorney
City of Santa Barbara
12 It is well settled that such issues are issues of law to be decided by courts. (See, e.g., J.
13 Arthur Properties II, LLC v. City of San Jose (2018) 21 Cal.App.5th 480, 486 [interpretation and
14 application of definitions in municipal code is a question of law]; Citizens for Beach Rights v.
15 City of San Diego (2017) 17 Cal.App.5th 230, 241 [interpretation of municipal ordinances is a
16 question of law]; County of Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312, 1322-1323
17 [application of statute of limitations to undisputed facts poses question of law]; City of
18 Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1168 [whether local law is pre-empted is a
19 question of law].)
20 It is equally well-settled that opinion evidence, including purported expert opinion, is
21 irrelevant and inadmissible on questions of law. The leading case on this subject is Summers v.
22 A.L. Gilbert Co., (1999) 69 Cal.App.4th 1155. As discussed in Summers, the prohibition of
23 expert testimony on questions of law extends across the full range of legal issues, ranging from
24 interpretation of contracts through the existence of probable cause, and also extends to any issue
25 which is properly a matter to be decided by a judge rather than a jury as a finder of fact. (Id., at
26 pp. 1179-1184.)
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Leila J. Noel, etc. v. City of Santa Barbara, et al.
City of Santa Barbara’s Opposition to Motion for Preliminary Injunction
1 Summers involved the question of whether an expert could testify on the issue of legal duty
2 in a negligence action. The proposition that expert opinion is inadmissible on any and all
3 questions of law is elaborated in many additional cases. A few examples will suffice.
4 In Sheldon Appel Co. v. Albert & Oliker, (1989) 47 Cal.3d 863, 884, the Supreme Court
5 rejected the use of expert opinions to establish the presence or absence of probable cause in a
6 malicious prosecution action. The Court noted “‛[I]t is thoroughly established that experts may
7 not give opinions on matters which are essentially within the province of the courts to decide.’
8 Consequently, the ‘opinion of a witness on a question of law is obviously incompetent.’” (Ibid.,
9 quoting in part Carter v. City of Los Angeles (1945) 67 Cal.App.2d 524, 528.)
10 In King v. State of California, (2015) 242 Cal.App.4th 265, 292-293, the court held that
740 State Street, Suite 201 P.O. Box 1990
11 expert opinion on the constitutionality of a traffic stop was properly excluded. The court noted
Santa Barbara, California 93102-1990
Office of the City Attorney
City of Santa Barbara
12 “an expert is not allowed ‘to testify to legal conclusions in the guise of expert opinion.’ …‘The
13 manner in which the law should apply to particular facts is a legal conclusion and is not subject
14 to expert opinion.’” (Ibid., quoting Downer v. Bramet (1984) 152 Cal.App.3d 837, 841 [citations
15 omitted].)
16 In Adams v. City of Fremont, (1999) 68 Cal.App.4th 243, 265-266, the court rejected expert
17 testimony offered on the legal issues of duty and standard of care in a negligence action on the
18 grounds that expert opinion was inadmissible on issues of law. The opinion cites numerous
19 examples of other cases rejecting expert testimony on similar legal issues. (Id. at p. 266.)
20 In Nevarrez v. San Marino Skilled Nursing & Wellness Center, LLC, (2014) 221
21 Cal.App.4th 102, 121-122, the court found that opinions that statutes had been violated appearing
22 in an agency investigator’s report were improperly admitted into evidence, and should have been
23 excluded as opinions on questions of law.
24 The same rule applies here. Issues of interpretation, validity and the application of
25 ordinances and statutes to facts are issues which belong to the Court. Indeed, it is well
26 established that even the testimony of individual legislators, elected officials or planning officials
27 who may have had a hand in drafting or enacting the statutes or ordinances in question may not
28 testify on matters of interpretation. (Terminal Plaza Corporation v. City and County of San
____________________________________ 8
Leila J. Noel, etc. v. City of Santa Barbara, et al.
City of Santa Barbara’s Opposition to Motion for Preliminary Injunction
1 Francisco (1986) 186 Cal.App.3d 814, 826-828.) Much less can the obviously biased testimony
2 of a purported expert be of help to the Court. Such testimony can merely serve to confuse issues
3 and lengthen the trial to the detriment of respondent City and to the detriment of the Court, and
4 must be excluded as a matter of law.
5 IV. CONCLUSION
6 For the foregoing reasons, the request for a preliminary injunction should be denied.
7
8 DATED: April 23, 2024 SARAH J. KNECHT, City Attorney
9
10 By /s/ Robin L. Lewis
Robin L. Lewis
740 State Street, Suite 201 P.O. Box 1990
11 Assistant City Attorney
Santa Barbara, California 93102-1990
Office of the City Attorney
Attorneys for City of Santa Barbara
City of Santa Barbara
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Leila J. Noel, etc. v. City of Santa Barbara, et al.
City of Santa Barbara’s Opposition to Motion for Preliminary Injunction
PROOFOFSERVICE
(C. C. P. §§1013(a), 2015. 5)
STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA
I am a citizen ofthe United States and a resident ofthe county aforesaid; I am over the age
of eighteen years and not a party to the within entitled action; my business address is 740 State
Street, Suite201, SantaBarbara, California;my electi-onicservice addressis
lclendenen@santabarbaraca.gov.
Onthedate setforthbelow, I served D the original ^| a tme andcorrect copy ofthe
followingdocuments:
CITY OF SANTA BARBARA'S OPPOSITION TO PETITIONER'S MOTION FOR
PRELIMINARY INJUNCTION
ontheparty(ies) in this actionortheir attorneynamedbelowby:
II personally delivering it to the following:
Q depositing it ina boxorfacility regularly maintained byFederal Express inanenvelope or
package designated by the carrier with delivery feespaid or provided for, for overnight
delivery, addressedas follows:
D depositingit intheUnitedStatesMailina sealedenvelopewithpostagethereonfully
prepaidto the following:
enclosing the document[s] in a sealed envelope addressed as follows with postage fully
prepaid andplacing the envelope for collection andmailing following our ordinary
business practices. I am readily familiar with this office's practice for collecting and
processing correspondence for mailing. Ontiie same daythat correspondence is placed
for collection and mailing, it is deposited in the ordinary course ofbusiness with the
United States Postal Service.
^ electronic servicepursuanttotheparties' ortheircounsels' agreement to acceptelectronic
sendee in this action, at the following electronic service address(es):
A. Barry Cappello ChristopherE. Haskell
RichardLloyd Melissa Fassett
Cappello & Noel LLP Price, Postel & Parma LLP
831 Sate Street 200 E. Carrillo Street, Fourth Floor
Santa Barbara, CA 93101 Santa Barbara, CA 93101
abc ca ellonoel. com chaskell(%DDplaw.corn
rllovd(%cai3pellonoel. corn mfassett(a), t)Dolaw. com
mbrel'e ca ellonoel. com abolden(%DDplaw.corn
I declare under penalty ofperjury that the above is true and correct. Executed on
April 24, 2024, at SantaBarbara,California.
Preview
1 SARAH J. KNECHT, City Attorney (SBN 138275) Tava Ostrenger, Acting City Attorney (SBN 249964) 2 Robin L. Lewis, Assistant City Attorney (SBN 199077) 740 State Street, Suite 201 3 Post Office Box 1990 Santa Barbara, California 93102-1990 4 Telephone: (805) 564-5326 Fax: (805) 564-5426 5 Email: tostrenger@santabarbaraca.gov rlewis@santabarbaraca.gov 6 Exempt from fees pursuant to Attorneys for Respondent City of Santa Barbara 7 Government Code § 6103 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 COUNTY OF SANTA BARBARA 10 ANACAPA DIVISION 740 State Street, Suite 201 P.O. Box 1990 11 Santa Barbara, California 93102-1990 Office of the City Attorney City of Santa Barbara 12 LEILA J. NOËL, Trustee of the Noël Living ) CASE NO. 24CV01633 Trust Originally Dated April 6, 2010, As ) 13 Amended and Restated March 18, 2019, ) CITY OF SANTA BARBARA’S ) OPPOSITION TO PETITIONER’S 14 Petitioner, ) MOTION FOR PRELIMINARY ) INJUNCTION 15 vs. ) ) Date: May 7, 2024 16 CITY OF SANTA BARBARA, ) Time: 9:00 a.m. ) Dept: 5 17 Respondent. ) ) 18 ) Complaint filed: 3/20/2024 ) Assigned to: Judge Colleen K. Sterne, Dept. 5 19 KOOTSTRA SBA, L.P., a California limited ) partnership; HOWARD KOOTSTRA, an ) 20 individual; ELAINE KOOTSTRA, an ) individual; CHRISTIAN MENARD, an ) 21 individual; and JENNA KOOTSTRA ) MENARD, an individual, ) 22 ) Real Parties in Interest. ) 23 ) 24 25 Respondent City of Santa Barbara (hereinafter “City” or “Respondent”) submits the 26 following opposition to Petitioner Leila J. Noël, Trustee of the Noël Living Trust Originally 27 Dated April 6, 2010, As Amended and Restated March 18, 2019’s motion for Preliminary 28 Injunction, as follows: ____________________________________ 1 Leila J. Noel, etc. v. City of Santa Barbara, et al. City of Santa Barbara’s Opposition to Motion for Preliminary Injunction 1 I. INTRODUCTION 2 It is well established by California law: 3 A trial court may not grant a preliminary injunction, regardless of the balance of 4 interim harm, unless there is some possibility that the plaintiff would ultimately 5 prevail on the merits of the claim. [Citation.] Unless potential merit is conceded, an 6 appellate court must therefore address that issue when reviewing an order granting a 7 preliminary injunction. (Butt v. State of California (1992) 4 Cal.4th 668, 677–678, 8 15 Cal.Rptr.2d 480, 842 P.2d 1240 (Butt ).) 9 (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1463.) 10 The only issue in this matter is whether the City was required to provide petitioner Leila J. 740 State Street, Suite 201 P.O. Box 1990 11 Noël (“Petitioner” or “Noël”) with notice of the Single Family Design Board hearings regarding Santa Barbara, California 93102-1990 Office of the City Attorney City of Santa Barbara 12 the project at the property at 155 Cedar Lane owned by Real Parties in Interest (“Kootstra”). 13 Notice was not required by the Santa Barbara Municipal Code (SBMC), by due process law, or 14 by any alleged settlement reached between the petitioner and the previous owners of 155 Cedar 15 Lane. For these reasons, Noël is unlikely to prevail on the merits and, thus, the requested 16 preliminary injunction cannot be granted. 17 II. STATEMENT OF FACTS 18 There are several factual assertions made by Noël’s expert, Jarret Gorin, which are simply 19 wrong. They are addressed below. 20 Gorin declares (Declaration of Jarret Gorin [Gorin Dec.], 3:17-18), that a Minor Zoning 21 Exception (“MZE”) must be approved for a first story deck. This, however, is irrelevant because 22 the proposed patio, which is proposed to be level with the finished grade created by the retaining 23 wall, did not meet the code’s definition of a deck, and, therefore, the MZE identified in SBMC 24 30.140.090.D.2. did not apply. (See Declaration of Edward Hamilton-Rolle In Support of 25 Respondent City of Santa Barbara’s Opposition to Motion for Preliminary Injunction “Hamilton- 26 Rolle Dec.”), ¶3, Exhibts 1 and 3, attached to Hamilton-Rolle Dec.; Exhibit A to Request for 27 Judicial Notice filed concurrently herewith (“RJN”).) A deck is typically made of wood or a 28 ____________________________________ 2 Leila J. Noel, etc. v. City of Santa Barbara, et al. City of Santa Barbara’s Opposition to Motion for Preliminary Injunction 1 wood-like material and is generally a raised platform supported by posts set in footings. 2 (Hamilton-Rolle Dec., ¶5.) 3 Gorin also states that the two proposed “decks encroach into the ten-foot interior setback.” 4 (Gorin Dec., 4:12.) Again, the proposed patios are not “decks.” The site plan shows a northern 5 patio and a southern patio in the interior setback. They are comprised of pavers on grade, not 6 footings that support an elevated platform. (See Hamilton-Rolle Dec., ¶ 6, Exhibits 1 and 3, 7 attached to Hamilton-Rolle Dec. Hence, they are not decks and an MZE was not required 8 because the patios in question do not meet the definition of a deck. 9 Noël also contends that the grading for the property should have triggered notice. There 10 was 150 cubic yards of grading done for this property but it did not reach the 250 cubic yards 740 State Street, Suite 201 P.O. Box 1990 11 noticing requirement set forth in SBMC 22.040.A.6. (See Exhibit H to RJN; Hamilton-Rolle Santa Barbara, California 93102-1990 Office of the City Attorney City of Santa Barbara 12 Dec., ¶7, Exhibit 8 to Hamilton-Rolle Dec.) 13 III. ARGUMENT 14 A. The SBMC Did Not Require Notice. 15 The limitation on projects requiring a noticed public hearing goes back to at least 2008 16 when Chapter 22.69 was added to Title 22 of the SBMC. (See Exhibit E to RJN, Ordinance 17 5444, page 3, attached to the Request for Judicial Notice (RJN) filed concurrently herewith.) 18 Then, as now, the review jurisdiction of the SFDB was broader than the list of projects that 19 required a noticed public hearing. Back in 2008, the projects that needed a noticed public 20 hearing were those listed in current section 22.69.040 A. 1, 2, 3, 6, and 7 (except there was no 21 reference to additional dwelling units or additional residential units). (See Exhibit D to RJN, 22 Ord. 5416, page 16.) Section 22.69.040 was amended in 2008 to add reference to “related 23 accessory structures” to the exceptions stated in A.2 and A.3 of that section. The notice 24 boundary was also increased from 100 to 300 feet. (See Exhibit E to RJN, Ord. 5444, page 4, 25 attached to RJN.) In 2010, the list was expanded to include a requirement for review of the 26 addition of over 150 sq/ft to existing second or higher stories (current A.4.) and projects 27 involving application for exception to parking requirements (current A.8.). (See Exhibit F to 28 RJN, Ord. No. 5518, page 1-2.) The last amendment to the section was in 2017. This latest ____________________________________ 3 Leila J. Noel, etc. v. City of Santa Barbara, et al. City of Santa Barbara’s Opposition to Motion for Preliminary Injunction 1 amendment added the requirement for notice of projects that involve a minor zoning exception 2 (current A.5.) and also added the references to Additional Residential Units and Accessory 3 Dwelling Units. (See Exhibit G to RJN, Ord. No. 5798, page 39 -40.) 1 4 As shown below, the subject project did not require a minor zoning exception (MZE) or 5 any other circumstance requiring notice. 6 B. The Project Did Not Involve a Minor Zoning Exception or Any Other 7 Circumstance Triggering a Notice Requirement. 8 As indicated above, the plan sheets for the subject project will show that this project did not 9 involve an MZE or any other criteria or circumstance that would have triggered a notice 10 requirement for this project. These documents are attached to the Declaration of Ted Hamilton- 740 State Street, Suite 201 P.O. Box 1990 11 Rolle (Hamilton-Rolle Dec.), Project Planner for the City of Santa Barbara Community Santa Barbara, California 93102-1990 Office of the City Attorney City of Santa Barbara 12 Development Department. Those plan sheets are also listed below and will be included in the 13 Administrative Record for the Court’s review of the writ petition. 14 BLD2021-02281 Issued Plan Sheets: 15 Exhibit 1 - Site plan showing hardscape and lighting: Sheet L1.0; 16 Exhibit 2 - Site plan showing the planting plan: Sheet L2.0; 17 Exhibit 3 - Site Sections showing retaining wall in eastern interior setback: Sheet L4.0; 18 Exhibit 4 - Pergola perspective: Sheet A117; 19 Exhibit 5 - Pergola Plan View: A118; 20 Exhibit 6 - Pergola Section View: A120; 21 Exhibit 7 - Pergola Louver Detail: A122; 22 Exhibit 8 - Civil plan showing grading not to exceed 250 CY quantity: Sheet C-0.1; and 23 Exhibit 9 - Grading Plan – Sheet C-2.1. 24 The sheets will show that although the retaining walls and patio protrude more than 10 25 inches above grade, there is no applicable Minor Zoning Exception pursuant to Title 30 of the 26 27 1 At page 39 of the ordinance, it states that Ord. No. 5798 amends a long list of municipal code 28 sections for conformity to the New Zoning Ordinance. ____________________________________ 4 Leila J. Noel, etc. v. City of Santa Barbara, et al. City of Santa Barbara’s Opposition to Motion for Preliminary Injunction 1 Santa Barbara Municipal Code (SBMC). The proposed patio, which is proposed to be level with 2 the finished grade created by the retaining wall, did not meet the code’s definition of a deck, and, 3 therefore, the MZE identified in SBMC 30.140.090.D.2.a (below) does not apply. SBMC 4 30.300.160 defines a patio as: “A hardscaped (e.g., concrete, tile, brick, stone, wood, etc.) area, 5 constructed with a finished surface no more than 10 inches above grade, which may or may not 6 be attached to another structure and intended for indoor-outdoor living and recreation. A patio 7 may be surrounded by walls or roofed, but not both.” (Exhibit B to RJN.) As indicated in 8 express language of 30.300.160, the “finished surface” is to be “no more than 10 inches above 9 grade,” which indicates that while the grade may be raised with fill, the distance between the top 10 of the hardscape itself cannot exceed 10 inches in height above the grade. 740 State Street, Suite 201 P.O. Box 1990 11 Also, contrary to Noël’s position that the proposed pergola is an accessory building, a Santa Barbara, California 93102-1990 Office of the City Attorney City of Santa Barbara 12 pergola is defined within SBMC Section 30.300.200 “T” as follows: 13 Trellis. A structure or frame supporting open latticework, at least 50% 14 open to the sky with uniformly distributed openings. A trellis is sometimes 15 referred to as a pergola or arbor. A trellis is not an accessory building. 16 (Exhibit C to RJN (emphasis added.) Thus, the plans show that the proposed pergola met this 17 definition, which expressly excludes a pergola as an accessory building. (See Hamilton-Rolle 18 Dec., ¶8.) 19 While the anticipated grading for the project was to exceed more than 150 cubic yards, as 20 stated above, it did not reach the 250 cubic yards noticing requirement set forth in SBMC 21 30.69.040.A.6. (See Exhibit H to RJN, Hamilton-Rolle Dec., ¶7, Exhibit 8 to Hamilton-Rolle 22 Dec.) Also, although the retaining wall was anticipated to rise over seven feet over natural 23 grade, it was not, as Noël contends, proposed to be located in the rear setback. (Hamilton-Rolle 24 Dec., ¶9, Exhibit 1 to Hamilton-Rolle Dec.) 25 Without explanation, Noël contends that the project was not compatible with the 26 Neighborhood Preservation Ordinance. However, the SFDB made the required findings under 27 the Ordinance for compatibility at the 10/12/2020 Project Design Approval hearing. (See 28 Exhibit C to Petition, page 2.) ____________________________________ 5 Leila J. Noel, etc. v. City of Santa Barbara, et al. City of Santa Barbara’s Opposition to Motion for Preliminary Injunction 1 C. The 2005 Litigation and Settlement Did Not Bind Successors in Interest to 155 2 Cedar Lane. 3 A covenant is said to run with the land if it binds not only the person who entered into it, 4 but also later owners and assigns who did not personally enter into it. (Civil Code § 1460.) “In 5 California, only covenants specified by statute run with the land (§ 1461), primarily those 6 described in sections 1462 and 1468.” (Citizens for Covenant Compliance v. Anderson (1995) 7 12 Cal.4th 345, 353.) The instrument containing such covenants binding successors in interest 8 must be “recorded in the office of the recorder of each county in which such land or some part 9 thereof is situated.” (Civil Code §1468 (d).) 10 Noël has not alleged that such an instrument has been recorded in Santa Barbara County. 740 State Street, Suite 201 P.O. Box 1990 11 She has also not attached any instruments containing such a covenant to any pleadings or other Santa Barbara, California 93102-1990 Office of the City Attorney City of Santa Barbara 12 documents filed with this Court. Therefore, the 2005 proceedings and any settlements or 13 agreements arising therefrom have no bearing on the issues in this case, and do not provide a 14 basis for requiring that notice be given to Noël for SFDB review of the subject project. 15 D. Noël Has Not Alleged Any Facts Showing Entitlement to Due Process 16 Protections Under Horn or Any Other Law. 17 “Due process principles require reasonable notice and opportunity to be heard before 18 governmental deprivation of a significant property interest.” (Horn v. County of Ventura (1979) 19 24 Cal.3d 605, 612 [emphasis added].) “[C]onstitutional notice and hearing requirements are 20 triggered only by governmental action which results in ‘significant’ or ‘substantial’ deprivations 21 of property, not by agency decisions having only a de minimis effect on land. Nor would action 22 involving only the nondiscretionary application of objective standards entitle a landowner to 23 such protections.” (Id. at 616.) 24 Noël has failed to state a property interest for which she is being deprived through the 25 design review process and for which she would be entitled to an administrative hearing and 26 appeal. The mere fact that she owns property adjacent to the subject property is insufficient. 27 The petition and Noël’s brief clearly demonstrate that the interest which she seeks to 28 protect is the views from her residence. Adjacent property owners in California, however, have ____________________________________ 6 Leila J. Noel, etc. v. City of Santa Barbara, et al. City of Santa Barbara’s Opposition to Motion for Preliminary Injunction 1 no natural right to an unobstructed view and “the law is reluctant to imply such a right.” (Miller 2 & Starr, California Real Estate, “Easements”, section 105, pp. 415-416, citing numerous cases, 3 including Noronha v. Stewart (1988) 199 Cal.App.3d 485, 492.) California law does not 4 recognize a view as a property interest and neither does the Santa Barbara Municipal Code have 5 any ordinance protecting views or privacy interests. Thus, Petitioner has failed to state an 6 interest entitled to due process protection. 7 E. The So-Called Expert Opinion Testimony of Jarrett Gorin Should Be 8 Excluded. 9 Noël has identified Jarret Gorin, a certified land use planner, as an expert witness in this 10 case. The Declaration of Jarret Gorin should be excluded on the grounds discussed below and in 740 State Street, Suite 201 P.O. Box 1990 11 Motion in Limine No. 1 and the objections filed concurrently herewith. Santa Barbara, California 93102-1990 Office of the City Attorney City of Santa Barbara 12 It is well settled that such issues are issues of law to be decided by courts. (See, e.g., J. 13 Arthur Properties II, LLC v. City of San Jose (2018) 21 Cal.App.5th 480, 486 [interpretation and 14 application of definitions in municipal code is a question of law]; Citizens for Beach Rights v. 15 City of San Diego (2017) 17 Cal.App.5th 230, 241 [interpretation of municipal ordinances is a 16 question of law]; County of Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312, 1322-1323 17 [application of statute of limitations to undisputed facts poses question of law]; City of 18 Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1168 [whether local law is pre-empted is a 19 question of law].) 20 It is equally well-settled that opinion evidence, including purported expert opinion, is 21 irrelevant and inadmissible on questions of law. The leading case on this subject is Summers v. 22 A.L. Gilbert Co., (1999) 69 Cal.App.4th 1155. As discussed in Summers, the prohibition of 23 expert testimony on questions of law extends across the full range of legal issues, ranging from 24 interpretation of contracts through the existence of probable cause, and also extends to any issue 25 which is properly a matter to be decided by a judge rather than a jury as a finder of fact. (Id., at 26 pp. 1179-1184.) 27 28 ____________________________________ 7 Leila J. Noel, etc. v. City of Santa Barbara, et al. City of Santa Barbara’s Opposition to Motion for Preliminary Injunction 1 Summers involved the question of whether an expert could testify on the issue of legal duty 2 in a negligence action. The proposition that expert opinion is inadmissible on any and all 3 questions of law is elaborated in many additional cases. A few examples will suffice. 4 In Sheldon Appel Co. v. Albert & Oliker, (1989) 47 Cal.3d 863, 884, the Supreme Court 5 rejected the use of expert opinions to establish the presence or absence of probable cause in a 6 malicious prosecution action. The Court noted “‛[I]t is thoroughly established that experts may 7 not give opinions on matters which are essentially within the province of the courts to decide.’ 8 Consequently, the ‘opinion of a witness on a question of law is obviously incompetent.’” (Ibid., 9 quoting in part Carter v. City of Los Angeles (1945) 67 Cal.App.2d 524, 528.) 10 In King v. State of California, (2015) 242 Cal.App.4th 265, 292-293, the court held that 740 State Street, Suite 201 P.O. Box 1990 11 expert opinion on the constitutionality of a traffic stop was properly excluded. The court noted Santa Barbara, California 93102-1990 Office of the City Attorney City of Santa Barbara 12 “an expert is not allowed ‘to testify to legal conclusions in the guise of expert opinion.’ …‘The 13 manner in which the law should apply to particular facts is a legal conclusion and is not subject 14 to expert opinion.’” (Ibid., quoting Downer v. Bramet (1984) 152 Cal.App.3d 837, 841 [citations 15 omitted].) 16 In Adams v. City of Fremont, (1999) 68 Cal.App.4th 243, 265-266, the court rejected expert 17 testimony offered on the legal issues of duty and standard of care in a negligence action on the 18 grounds that expert opinion was inadmissible on issues of law. The opinion cites numerous 19 examples of other cases rejecting expert testimony on similar legal issues. (Id. at p. 266.) 20 In Nevarrez v. San Marino Skilled Nursing & Wellness Center, LLC, (2014) 221 21 Cal.App.4th 102, 121-122, the court found that opinions that statutes had been violated appearing 22 in an agency investigator’s report were improperly admitted into evidence, and should have been 23 excluded as opinions on questions of law. 24 The same rule applies here. Issues of interpretation, validity and the application of 25 ordinances and statutes to facts are issues which belong to the Court. Indeed, it is well 26 established that even the testimony of individual legislators, elected officials or planning officials 27 who may have had a hand in drafting or enacting the statutes or ordinances in question may not 28 testify on matters of interpretation. (Terminal Plaza Corporation v. City and County of San ____________________________________ 8 Leila J. Noel, etc. v. City of Santa Barbara, et al. City of Santa Barbara’s Opposition to Motion for Preliminary Injunction 1 Francisco (1986) 186 Cal.App.3d 814, 826-828.) Much less can the obviously biased testimony 2 of a purported expert be of help to the Court. Such testimony can merely serve to confuse issues 3 and lengthen the trial to the detriment of respondent City and to the detriment of the Court, and 4 must be excluded as a matter of law. 5 IV. CONCLUSION 6 For the foregoing reasons, the request for a preliminary injunction should be denied. 7 8 DATED: April 23, 2024 SARAH J. KNECHT, City Attorney 9 10 By /s/ Robin L. Lewis Robin L. Lewis 740 State Street, Suite 201 P.O. Box 1990 11 Assistant City Attorney Santa Barbara, California 93102-1990 Office of the City Attorney Attorneys for City of Santa Barbara City of Santa Barbara 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ____________________________________ 9 Leila J. Noel, etc. v. City of Santa Barbara, et al. City of Santa Barbara’s Opposition to Motion for Preliminary Injunction PROOFOFSERVICE (C. C. P. §§1013(a), 2015. 5) STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA I am a citizen ofthe United States and a resident ofthe county aforesaid; I am over the age of eighteen years and not a party to the within entitled action; my business address is 740 State Street, Suite201, SantaBarbara, California;my electi-onicservice addressis lclendenen@santabarbaraca.gov. Onthedate setforthbelow, I served D the original ^| a tme andcorrect copy ofthe followingdocuments: CITY OF SANTA BARBARA'S OPPOSITION TO PETITIONER'S MOTION FOR PRELIMINARY INJUNCTION ontheparty(ies) in this actionortheir attorneynamedbelowby: II personally delivering it to the following: Q depositing it ina boxorfacility regularly maintained byFederal Express inanenvelope or package designated by the carrier with delivery feespaid or provided for, for overnight delivery, addressedas follows: D depositingit intheUnitedStatesMailina sealedenvelopewithpostagethereonfully prepaidto the following: enclosing the document[s] in a sealed envelope addressed as follows with postage fully prepaid andplacing the envelope for collection andmailing following our ordinary business practices. I am readily familiar with this office's practice for collecting and processing correspondence for mailing. Ontiie same daythat correspondence is placed for collection and mailing, it is deposited in the ordinary course ofbusiness with the United States Postal Service. ^ electronic servicepursuanttotheparties' ortheircounsels' agreement to acceptelectronic sendee in this action, at the following electronic service address(es): A. Barry Cappello ChristopherE. Haskell RichardLloyd Melissa Fassett Cappello & Noel LLP Price, Postel & Parma LLP 831 Sate Street 200 E. Carrillo Street, Fourth Floor Santa Barbara, CA 93101 Santa Barbara, CA 93101 abc ca ellonoel. com chaskell(%DDplaw.corn rllovd(%cai3pellonoel. corn mfassett(a), t)Dolaw. com mbrel'e ca ellonoel. com abolden(%DDplaw.corn I declare under penalty ofperjury that the above is true and correct. Executed on April 24, 2024, at SantaBarbara,California.