Smith v. City of Santa Barbara CA2/6 ( 2021 )

Filed 1/26/21 Smith v. City of Santa Barbara CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
GREG SMITH ET AL., 2d Civil No. B301299
(Super. Ct. No. 18CV01590)
Petitioners and Appellants, (Santa Barbara County)
v.
CITY OF SANTA BARBARA,
ET AL.,
Respondents;
HERBERT BARTHELS ET AL.,
Real Parties in Interest.
Real Parties in Interest Herbert Barthels and the Herbert
E. Barthels Trust (Barthels) bought the last undeveloped
oceanfront lot in Santa Barbara (City) in 1976. Barthels’s plans
to build a house stalled in 1989 when the City determined he
lacked legal access to the property. The City recently changed its
position and revived Barthels’s plans. Neighbors and appellants
Greg and Judith Smith (the Smiths) opposed development and
sought a traditional writ of mandate challenging the City’s access
determination. The trial court denied their petition.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Mesa neighborhood overlooks the Pacific Ocean from
the bluffs above Santa Barbara Harbor. Barthel’s lot sits on the
waterfront near the Mesa’s centerline, just a few hundred feet
from the city’s historic lighthouse. One accesses the lot by taking
El Camino de la Luz to its eastern cul-de-sac terminus, entering a
driveway, then following a narrow private road that bends
southward toward the ocean. At the end is 1837 ½ El Camino de
la Luz. The Smiths own the oceanfront house just west of
Barthels’s lot at 1839 El Camino de la Luz.
The late Gertrude Eaton created 1837 ½ by splitting off
1837’s southern half in 1958. Eaton’s neighbors, including the
former owner of the Smith’s property, sent letters to the Planning
Commission supporting her split request. Minutes from the
commission hearings, however, reflect concerns among its
members about the private road’s width and service capacity.
The Commission recommended the City Council deny the
request. Eaton appeared personally at the next council meeting
and explained why she believed the existing 15-foot easement
would provide adequate access. The council granted her request
despite the commission’s denial recommendation, noting “that
several of the neighbors wrote letters . . . urging approval of the
requested division of property, and the granting of a variance in
this case.” Eaton eventually sold 1837 ½. Barthels bought the
undeveloped lot in 1976.
Barthels first applied for a development permit in 1989.
Neighbors objected on the grounds his project would further
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burden the already strained private road. He learned during this
process that portions of his easement measured only 7.5 feet
wide. When the City refused to issue a building permit, Barthels
sued his title insurer for negligence and obtained a damages
award of $31,524 plus the lot’s purchase price adjusted for
inflation.1
Barthels continued his development efforts after obtaining
the damages award. He secured a water meter and worked with
the fire department to resolve safety issues. The easement,
however, remained the project’s Achilles heel. A letter from the
City Attorney’s office in 1997 concluded that “the required legal
access to the parcel is not clearly and definitely established from
a legal standpoint.” The City reiterated its refusal to process his
development application because the lot “[did] not appear to
satisfy a fundamental condition of its original creation, the
existence of the 15 foot wide access easement for the full length
necessary for vehicular access from the public street to the
parcel.” Barthels requested a conditional certificate of
compliance stating exactly what was required to make his lot
legal. The City issued a certificate in 1999 stating he would need
to “provide evidence, satisfactory to the City Engineer that the
owner . . . substantially possesses the required amount of legal
access that formed the basis of the originally approved lot split.”
Barthels filed a second development application in 2002.
Neighbors again voiced their belief that the existing easement
would not support an additional home. They also accused the
late Eaton of misrepresenting the easement’s width when she
1We affirmed the superior court’s calculation of Barthels’s
damages in Barthels v. Santa Barbara Title Co. (1994) 28
Cal. App. 4th 674. The appeal did not address the substance of
Barthels’s negligence claims.
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addressed the City Council in 1958 – an act they alleged would
invalidate the lot split. These objections led Barthels to sue the
owners of the lots served by the private road as a way to perfect
his access rights. 2 They settled the case after reaching an
agreement about the easement’s precise boundaries: 15 feet wide
along its northern half; 7.5 feet wide at a “pinch point” in the
middle; and 10 feet wide along the southern half leading to
Barthels’s lot. The court entered a stipulated judgment to this
effect in 2009.
Barthels continued working through the environmental
review process. The Smiths began resisting the lot’s development
immediately after buying their house in 2010. Trenching
performed at the behest of the project’s geotechnical engineers
prompted the Smiths to file a complaint for injunctive relief in
2012.3 The case lasted two years. When work resumed, the
Smiths submitted formal comments to the Planning Commission
reiterating their concerns about access, the lot’s legality, and
impacts to nearby Lighthouse Creek. They appeared at Planning
Commission hearings and submitted a lengthy report from a land
use expert opining that Barthels did not and could not satisfy
specific conditions set forth in the City’s 1999 conditional
certificate of compliance.
City Engineer Brian D’Amour decided Barthels satisfied
the conditions. D’Amour explained his findings in a
memorandum to the Planning Commission in February of 2018.
He concluded Barthels now “‘substantially possesse[d] the
Barthels v. Franco, et al. (Super. Ct. Santa Barbara
2
County, 2008, No. 1268293).
Smith v. Barthels, et al. (Super. Ct. Santa Barbara
3
County, 2012, No. 1414447).
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required amount of legal access that formed the basis of the
originally approved lot split.’” D’Amour noted the easement
boundaries established by Barthels and his neighbors in 2009
matched those reflected in the lot split map submitted by Eaton
when she applied for split in 1958. His memorandum cited
several exhibits, including the certificate, records from the 1958
lot split proceedings, the City Attorney’s 1997 letter, and the
2009 stipulated judgment.
The Smiths challenged D’Amour’s determination by
petitioning for a traditional writ of mandamus. They contended
D’Amour erred by disregarding key evidence and assuming the
accuracy of Eaton’s lot split map. In addition, they requested a
finding that Barthels’s representations in his title insurance case
about his lack of legal access estopped him from later asserting
those rights. The trial court denied the petition and entered
judgment against the Smiths.
DISCUSSION
A. D’Amour’s Discretionary Access Determination Is Not Subject
to Traditional Writ Review
“A writ of mandate may be issued by any court . . . to
compel the performance of an act which the law specially enjoins,
as a duty resulting from an office, trust, or station.” (Code Civ.
Proc., § 1085, subd. (a).) “Generally, mandamus is available to
compel a public agency’s performance or to correct an agency’s
abuse of discretion when the action being compelled or corrected
is ministerial.” (AIDS Healthcare Foundation v. Los Angeles
County Dept. of Public Health (2011) 197 Cal. App. 4th 693, 700,
citing Rodriguez v. Solis (1991) 1 Cal. App. 4th 495, 501.) A
“‘ministerial act’” is one in which “‘a public officer is required to
perform in a prescribed manner in obedience to the mandate of
legal authority and without regard to his [or her] own judgment
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or opinion concerning such act's propriety or impropriety, when a
given state of facts exists.’” (Ibid., citing Rodriguez at pp. 501-
502.) “Mandamus does not lie to compel a public agency to
exercise discretionary powers in a particular manner, only to
compel it to exercise its discretion in some manner.” (Id. at pp.
700-701.)
We categorize D’Amour’s access determination as a
discretionary act performed in connection, and in compliance,
with the City’s authority under the Subdivision Map Act (Act) to
impose conditions on the development of local subdivisions. (See
AIDS Healthcare Foundation v. Los Angeles County Dept. of
Public Health, supra, 197 Cal.App.4th at p. 701 [whether duty
imposed by statute is ministerial or discretionary “is a question of
statutory interpretation”].) The Act vests local agencies with
authority to determine whether real property complies with the
Act’s provisions and land use ordinances. (Gov. Code, § 66499.35,
subd. (a); see Save Mount Diablo v. Contra Costa County (2015)
240 Cal. App. 4th 1368, 1377 [“The Act ‘grants to local
governments the power to regulate the manner in which their
communities grow’”].) Issuing a conditional certificate of
compliance notifies the owners of a non-compliant property how
they can bring the property into compliance and thereby seek the
permits or other grants required to begin development. (Gov.
Code, § 66499.35, subd. (b).)
The City issued Barthels a conditional certificate of
compliance in 1999. The certificate identifies the City Engineer
as the official responsible for deciding whether 1837 ½ “possessed
the amount of required legal access that formed the basis of the
City’s approval of the lot split in 1958.” The Smiths do not allege
D’Amour declined to exercise his discretion or failed to perform a
ministerial duty. They allege he exercised his discretion
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incorrectly by, for example, relying on the lot split map and
disregarding Eaton’s alleged lies to council members in 1958.
These allegations only highlight how D’Amour’s determination
was a product of his judgment as City Engineer and not his
“obedience to the mandate of legal authority.” As such, it lies
outside the purview of traditional mandate under Code Civ.
Proc., section 1085.
B. The Trial Court’s Denial of the Petition Was Supported by
Substantial Evidence
Though the trial court need not have considered the
petition on its merits, it ruled correctly when it did so. “‘In
reviewing a trial court’s judgment on a petition for writ of
ordinary mandate, we apply the substantial evidence test to the
trial court’s factual findings.’” (Klajic v. Castaic Lake Water
Agency (2001) 90 Cal. App. 4th 987, 995-996, citing Kreeft v. City of
Oakland (1998) 68 Cal. App. 4th 46, 53.) “Thus, foundational
matters of fact are conclusive on appeal if supported by
substantial evidence.” (Klajic, at p. 996, citing Clark v. City of
Hermosa Beach (1996) 48 Cal. App. 4th 1152, 1169-1170.) We
conclude the trial court’s ruling met this standard. It correctly
denied the petition and entered judgment against the Smiths.
“[W]e need not disturb the ruling when it is correct in law on
other grounds.” (Pogosyan v. Appellate Division of Superior Court
(2018) 26 Cal. App. 5th 1028, 1036 citing People v. Smithey (1999)
20 Cal. 4th 936, 971-972.)
The absence of a verbatim transcript or precise references
to identifiable demonstrative exhibits from 1958, such as the
“plot map” mentioned by commissioners and council members,
required D’Amour to reconstruct the basis of historic decisions
and reconcile them with subsequent legal developments. The
trial court carefully reviewed D’Amour’s decision and the 1600-
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page administrative record lodged with the petition. Its
statement of decision cited all documents the Smiths used to
support their position, including the City Attorney’s 1997 letter,
court filings, and most significantly, the minutes and reports
relating to Eaton’s lot split request in 1958. D’Amour and the
trial court did not reach a result contrary to the evidence, as the
Smiths argue, but a result contrary to the Smiths’ interpretation
of this evidence. We resolve such conflicts of disputed fact in favor
of Barthels as the prevailing party. (Public Employment
Relations Bd. v. Bellflower Unified School Dist. (2018) 29
Cal. App. 5th 927, 939, citing Hayes v. Temecula Valley Unified
School Dist. (2018) 21 Cal. App. 5th 735, 746.)
C. Judicial Estoppel Does Not Apply Under
These Circumstances
The Smiths contend the trial court erred by not addressing
whether the doctrine of judicial estoppel prevents Barthels from
asserting his legal access to 1837 ½. The positions Barthels
asserted in his title insurance case, they allege, contradict those
asserted in these writ proceedings. The contention is moot
considering traditional writ review is not available. If it were,
any error was harmless because Barthels positions were neither
“inconsistent” nor taken “in judicial or quasi-judicial
administrative proceedings.” (Jackson v. County of Los Angeles
(1997) 60 Cal. App. 4th 171, 183.)
Barthels sued his title insurer after the City refused to
process his first development permit application in 1989. The
positions he took in that case predated the City’s conditional
certificate of compliance by a decade and the stipulated judgment
by two decades. His newfound optimism flows from an altered
legal landscape. We do not consider Barthels’ current positions
“inconsistent” with those taken under such different
8
circumstances so long ago. Nor were those positions taken in the
context of a judicial or quasi-judicial administrative proceeding.
Barthels asked the City Engineer to determine whether the
conditions of the 1999 certificate of compliance were satisfied.
The City Engineer answered in the affirmative. No
administrative hearing occurred and none was required to make
this discretionary decision.
That Barthels must defend his access rights 30 years hence
would only strengthen the younger Barthels’ claims against his
title insurer. We doubt the trial court would consider his
renewed attempts to establish access as behavior that could
“‘“‘result in a miscarriage of justice’”’” and thereby warrant the
extraordinary remedy of judicial estoppel. (Blix Street Records,
Inc. v. Cassidy (2010) 191 Cal. App. 4th 39, 46-48, citing Levin v.
Ligon (2006) 140 Cal. App. 4th 1456, 1468 [applying doctrine is
discretionary even when all factors present].)
DISPOSITION
The judgment is affirmed. Respondents shall recover their
costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Colleen K. Sterne, Judge
Superior Court County of Santa Barbara
______________________________
Venskus & Associates, Sabrina Venskus and Rachael
Kimball, for Petitioners and Appellants Greg Smith and Judith
Smith.
No appearance for Defendants and Respondents City of
Santa Barbara and Brian D’Amour.
Janet K. McGinnis for Real Parties in Interest and
Respondents Herbert Barthels and Herbert E Barthels Trust.
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