SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SAN DIEGO

CENTRAL
MINUTE ORDER
DATE: 01/27/2015

TIME: 11:29:00 AM
JUDICIAL OFFICER PRESIDING: Ronald S. Prager
CLERK: Terry Ray
REPORTER/ERM: Not Reported
BAILIFF/COURT ATTENDANT: L. Wilks

DEPT: C-71

CASE NO: 37-2013-00062168-CU-TT-CTL CASE INIT.DATE: 08/12/2013

CASE TITLE: North Park Preservation Coalition vs. City of San Diego [E-FILE]
CASE TYPE: Toxic Tort/Environmental
CASE CATEGORY: Civil - Unlimited

EVENT TYPE: Ex Parte

APPEARANCES
There are no appearances by any party.
The Court, having taken the above-entitled matter under submission on 01/23/15 and having fully
considered the arguments of all parties, both written and oral, as well as the evidence presented, now
rules as follows:
RULINGS AFTER ORAL ARGUMENT: The Court rules on defendant/respondent City of San Diego's
(City) motion for summary judgment as follows:
After taking the matter under submission, the Court confirms its tentative ruling.

City's Request for Judicial Notice. The request for judicial notice is granted.
Standard for Summary Judgment
A motion for summary judgment asks the court to determine that the entire action has no merit or that
there is no defense (Code Civ. Proc. 437c(a).) The moving party's evidence is strictly construed while
the opposing party's evidence is liberally construed. (Binder v. Aetna Life Insurance Co. (1999) 75
Cal.App.4th 832, 838 (hereafter Binder).) The Court's sole function is issue finding, not issue
determination. (Id. at p. 839.) A Court may not weigh the evidence or conflicting inferences. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856 (hereafter Aguilar).) A Court may decide the issues as
a matter of law only when the inferences are indisputable. (Binder, supra, 75 Cal.App.4th at p. 839.)
Factual issues must be resolved by trial if the evidence is in conflict. (Ibid.)

Burden of Proof. Where the plaintiff has the burden of proof at trial by a preponderance of the evidence,
defendant "must present evidence that would require a reasonable trier of fact not to find the underlying

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CASE TITLE: North Park Preservation Coalition vs. City

CASE NO: 37-2013-00062168-CU-TT-CTL
of San Diego [E-FILE]
material fact more likely than not." (Aguilar, supra, 25 Ca1.4th at p. 851.) A defendant may meet its
burden by presenting affirmative evidence negating, as a matter of law, an essential element of plaintiffs
claim (Guz v. Bechtel Nat., Inc. (2000) 24 Ca1.4th 317, 334) or showing that an essential element of
plaintiff's claim cannot be established because plaintiff does not possess, and cannot reasonably obtain,
needed evidence (Aguilar, supra, 25 Ca1.4th at p. 854). Once a defendant meets its burden, the burden
shifts to plaintiff to prove the existence of a triable issue of fact regarding that element of its cause of
action. (Saelzler v. Advanced Group 400 (2001) 25 Ca1.4th 763, 780-781.)
As a preliminary matter, the Court notes that Petitioner objected to evidence submitted with the City's
reply. For the reasons set forth at oral argument, the Court overrules said objections.
The motion is granted for the reasons stated below.
The Court finds that petitioner North Park Preservation Coalition's (Petitioner) procedural argument lacks
merit. In this instance, the first amended complaint (FAC) only names the City in the first (maintenance,
use, or construction of premises without neighborhood development permit) and second (discretionary
action potentially affecting environmental review). The City brought this motion as to these claims.
Furthermore, the City was only required to set forth each cause of action if it had alternatively brought a
motion for summary adjudication. It did not do so here.
The City contends that Petitioner's claims are time-barred, citing San Diego Municipal Code section
121.0102 (section 121.0102) and Government Code section 65009 (section 65009). The City correctly
notes that the parties stipulated that the building permit was issued on May 2, 2013 for all purposes.
(Minute Order dated 9/13/13; see also City's Separate Statement (SS), No. 1.) Petitioner did not file this
action until August 12, 2013, 102 days after the determination was made and the building permit was
issued. (City's Request for Judicial Notice), Exh. 5; SS, No. 2.)
As to the scope of the building permit, the City provided a copy of what it purports to be the Building
Permit. (Reply, Exh. B.) The document stated that the scope of the permit was 'Thor extensive
demolition of interior and exterior walls and roof structure, and construction of new roof structure,
partition walls, restrooms, and associated mechanical, electrical and plumbing." (Ibid.) In addition,
Steven Schneider, the president and CEO of Lyons Warren & Associates, Inc., which was responsible
for the architectural and structural engineering of the Upas Street restaurant stated that the only change
to the plans was the movement of a wall four inches to accommodate the roof trusses. (Schneider Dec.,
2.) According to Schneider, the change was minor and the rest of the remodel was built in accordance
with the originally approved plans. (Id., at 3.)
In response, Petitioner points to a letter written by Mike Hogenboom, a construction manager for JIB, on
May 31, 2013 which states, in relevant part, that "[Me are not demolishing any of the exterior walls."
(Plaintiff's Additional Material Facts (PAMF), Nos.13-14.) However, Petitioner's founding members
admitted that they observed the demolition of exterior walls within weeks of the issuance of the letter.
(Id., at Nos. 15-16.) They also admit that they had been taking an active interest in the project since
2012 (Id., at No. 12) and provided the Court with a copy of the Construction Change issued on July 29,
2013 which specifically stated that adjustments were going to be made to exterior walls. (Id., at No. 9;
Gladden Dec., Exh. F.) Thus, Petitioner was well aware that changes to the exterior wall were
encompassed by the project.
The Petitioner's estoppel argument fails. In Lantzy v. Centex Homes (2003) 31 Ca1.4th 363, 384 fn. 18,
the court stated that "the defendant's statement or conduct must amount to a misrepresentation bearing

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CASE TITLE: North Park Preservation Coalition vs. City

of San Diego [E-FILE]

CASE NO: 37-2013-00062168-CU-TT-CTL

on the necessity of bringing a timely suit." Here, none of the representations cited to by Petitioner in
support of its argument bears on the issue of its right to file suit. Furthermore, Petitioner failed to meet
the required elements to assert estoppel. (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 655.) For
example, there is no evidence that Petitioner advised the City that it was holding off on litigation based
on the City's representations or that the City expected Petitioner to refrain from filing litigation based on
its representations.
Finally, as to Petitioner's contention that section 65009 subd. (c)(1)(E) does not apply to this action, the
City correctly pointed out that section 65009 subd. (f) specifically states that it applies to charter cities.
Regardless, Petitioner did not contest the applicability of section 121.0102.

IT IS SO ORDERED.
The Court rules on real parties in interest Jack in the Box Inc. (JIB) and John 0. Thomas' (Thomas)
(sometimes collectively RPIs) motion for summary judgment or, in the alternative, summary adjudication
as follows:
After taking the matter under submission, the Court confirms its tentative ruling.

Requests for Judicial Notice. The parties' requests for judicial notice are granted.
Petitioner North Park Preservation Coalition's (Petitioner) Evidentiary Objections.The Court rules as
follows:

Pappenfus Declaration. Objection Nos. 1-2 are overruled.

Fay Declaration. Objection Nos. 1-2 are overruled.

Schneider Declaration. Objection Nos. 1-3 are overruled.

RPIs' Evidentiary Objections. The Court rules as follows:
Bozinovic Declaration. Objection No. 1 is sustained on the ground of relevance.
Nail Declaration. Objection No. 1 is sustained on the ground of relevance. Objection No. is sustained
on the ground of hearsay.

Lewis Declaration. Objection No. 1 is sustained on the ground of lack of foundation.

Gladden Declaration. Objection No.1 is overruled. Objection No. 2 is sustained on the grounds of
hearsay and lack of authentication.
Standard for Summary Judgment and Summary Adjudication
A motion for summary judgment asks the court to determine that the entire action has no merit or that
there is no defense (Code Civ. Proc., 437c(a)) while a motion for summary adjudication asks the court
to determine that one or more causes of action, affirmative defenses, claims for damages, or issues of
duty has no merit (Id., at subd. (f)(1)). The moving party's evidence is strictly construed while the
opposing party's evidence is liberally construed. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th
832, 838 (hereafter Binder).) The Court's sole function is issue finding, not issue determination. (N. at

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CASE TITLE: North Park Preservation Coalition vs. City

CASE NO: 37-2013-00062168-CU-TT-CTL
of San Diego [E-F1LE]
p. 839.) A Court may not weigh the evidence or conflicting inferences. (Aguilar v. Atlantic Richfield Co.
(2001) 25 Ca1.4th 826, 856 (hereafter Aguilar).) A Court may decide the issues as a matter of law only
when the inferences are indisputable. (Binder, supra, 75 Cal.App.4th at p. 839.) Factual issues must be
resolved by trial if the evidence is in conflict. (Ibid.)
Burden of Proof. Where the plaintiff has the burden of proof at trial by a preponderance of the evidence,
defendant "must present evidence that would require a reasonable trier of fact not to find the underlying
material fact more likely than not." (Aguilar, supra, 25 Ca1.4th at p. 851.) A defendant may meet its
burden by presenting affirmative evidence negating, as a matter of law, an essential element of plaintiffs
claim (Guz v. Bechtel Nat., Inc. (2000) 24 Ca1.4th 317, 334 (hereafter Guz)) or showing that an essential
element of plaintiff's claim cannot be established because plaintiff does not possess, and cannot
reasonably obtain, needed evidence (Aguilar, supra, 25 Ca1.4th at p. 854). Once a defendant meets its
burden, the burden shifts to plaintiff to prove the existence of a triable issue of fact regarding that
element of its cause of action. (Saelzler v. Advanced Group 400 (2001) 25 Ca1.4th 763, 780-781.)

The motion is granted for the reasons stated below.

The motion is granted as to the statute of limitations issue raised by RP1s for reasons set forth by the
Court in its ruling on respondent City of San Diego's concurrently filed motion for summary judgment.
The motion is also granted as to the third cause of action for public nuisance, as Petitioner lacks
standing to assert this claim.
A private person has standing to bring a public nuisance claim only if he alleges a "special injury" to
himself, different in both kind and degree, from the injury purportedly suffered by the members of the
general public. (See Civ. Code, 3493; Koll-lrvine Center Property Owners Assn. v. County of Orange
(1994) 24 Cal.App.4th 1036, 1040.) Here, Plaintiff presented no evidence that the kind of injury suffered
in this action is in any way different in kind from that suffered by other members of the public. (Ibid.; see
also Voorheis v. Tidewater Southern Ry. Co. (1919) 41 Cal.App. 315, 320.) Furthermore, courts have
stated that close proximity is insufficient to establish standing in public nuisance cases. (Baker v.
Burbank-Glendale Pasadena Airport Authority (1990) 220 Cal.App.3d 1602, 1610.)
Thus, it is unnecessary to address the other issues raised in the motion as to this claim.
IT IS SO ORDERED.

invit4ti

ei-4e/t-

Judge Ronald S. Prager

DATE: 01/27/2015
DEPT: C-71

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