Robert Schwob et al vs County of Santa Barbara, California et al

By way of the Writ, the Schwobs seek to compel the County to: (1) Accept and process the Schwob's Notice of Violation; (2) Conduct a full investigation and issue a written determination of code compliance or non-compliance within 10 days of the court's order; (3) If violations are confirmed, issue a Notice of Violation, a Stop Work Order or an Order of Abatement requiring the immediate cessation of use and remediation of the violations, including removal of the unpermitted structure and grading; and (4) Award the Schwobs costs of suit, including reasonable attorneys' fees. (Writ, Prayer for Relief.)

On February 6, 2026, the County filed the present demurrer to the Writ on the grounds that there is no justiciable controversy for the court to decide and the Writ is barred by the doctrine of res judicata due to the final judgment in Case No. 23CV02404, also entitled Robert Schwob and Christine Schwob v. County of Santa Barbara, Jeff Crosby, and Susan Crosby ("Case No. 23CV02404").

Case No. 23CV02404 was filed both as a Petition for Writ of Mandate and a Complaint for Damages and Injunctive Relief, with the operative pleading being the Second Amended Petition and Complaint ("SAPC"). By way of the SAPC in Case No. 23CV02404, the Schwobs asserted 12 causes of action. Among the causes of action, as alleged against the County, were ones related to failure to enforce laws regarding various violations of an illegal sports court, grading, and noise.

As to the County, the Schwobs made allegations including: "Among the activities that require a Conditional Use Permit or a Land Use Permit are the siting of a Sports Court and allowing for a fence height exceeding six feet, each of which would result in a public hearing held by the County for the Crosbys, thereby permitting the Schwobs to participate in the process." (SAPC, P. 66.)

"The County failed to follow the specified proceedings for the Sports Court or fence, and because a hearing is required but not held, the County failed to comply with Code of Civil Procedure, section 1094.5." (SAPC, P. 67.)

"County failed to enforce the provisions of the Code, including, but not limited to, Chapter 5, Sec.35.400.040.A; Sec.35.420.040.A; and Sec.35.442.020.4.a.(1).(c) (as to the Sports Court) and Chapter 35, Sec.35.400.040.A; Sec.35.430.070.C; and Sec.35.430.070 Table 3-2 (as to the fencing)." (SAPC, P. 73.)

"Plaintiffs are entitled to have portions of the Santa Barbara County Montecito Land Use and Development Code . . . enforced to protect them, including grading." (SAPC, P. 76.)

"Petitioner/Plaintiffs are entitled to have portions of the Santa Barbara County Montecito Land Use and Development Code ("Code") enforced to protect them against nuisances, such as the building of Code-violating structures in adjacent properties." (SAPC, P. 81.)

On May 1, 2024, in Case No. 23CV02404, a demurrer was sustained in favor of the County and sustained in part in favor of the Crosbys. The court held: "As a result of the parties' agreement that the Schwobs would not further amend their pleading beyond the SAPC, this action will therefore proceed with respect to the second cause of action for traditional mandamus against the County, and the seventh through ninth causes of action for nuisance against the Crosbys."

On November20, 2024, the court denied the SAPC in Case No. 23CV02404.

Analysis: Judicial Notice

The County requests that the court take judicial notice of: (1) Notice of Entry of Judgment in Case No. 23CV02404; (2) Minute Order dated January 31, 2025 in Case No. 23CV02404; and (3) The SAPC in Case No. 23CV02404. The Schwobs did not object to the request that the court take judicial notice of the documents. Pursuant to Evidence Code section 452, subdivisions (d), judicial notice may be taken of "Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States."

The Schwobs request that the court take judicial notice of "the current, publicly codified Santa Barbara County and Montecito land use ordinances to confirm the continuity of the enforcement mandates." (Opp., p. 11, ll. 11 - 14.) The County did not object to the request. Pursuant to Evidence Code section 452, subdivisions (b), judicial notice may be taken of "Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States."

"The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter." (Evid. Code, Sec. 453.)

"Judicial notice is properly taken of the existence of a factual finding in another proceeding, but not of the truth of that finding. [Citations.]" (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120.) The court will take judicial notice of the court records as requested by the County and of the regulations and legislative enactments as requested by the Schwobs.

Standard on Demurrer

The party on whom a petition for writ of mandate has been served may respond by demurrer. (Code Civ. Proc., Sec. 1089, subd. (a); Chapman v. Superior Court (2005) 130 Cal.App.4th 261, 271 ["[a] proceeding in mandamus is generally subject to the general rules of pleading applicable to civil actions" and the petition must "allege specific facts showing entitlement to relief"].)

"The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also 'give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]' [Citation.]" (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (Quelimane); accord, Zhang v. Superior Court (2013) 57 Cal.4th 364, 370.)

"If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer." (Quelimane, supra, 19 Cal.4th at p. 38.)

"The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: "(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. "(b) The person who filed the pleading does not have the legal capacity to sue. "(c) There is another action pending between the same parties on the same cause of action. "(d) There is a defect or misjoinder of parties. "(e) The pleading does not state facts sufficient to constitute a cause of action. "(f) The pleading is uncertain.

As used in this subdivision, "uncertain" includes ambiguous and unintelligible. "(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. "(h) No certificate was filed as required by Section 411.35." (Code Civ. Proc., Sec. 430.10.)

"When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading." (Code Civ. Proc., Sec. 430.30, subd. (a).)

"[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law." (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

Res Judicata

As stated above, the basis of the County's demurrer is that the Writ is barred by the doctrine of res judicata. "Res judicata - law Latin for ' "a thing adjudicated" ' - is an umbrella term encompassing issue preclusion and claim preclusion, both of which describe the preclusive effect of a final judgment. As a general matter under the doctrine of claim preclusion, a final judgment on the merits bars parties or parties in privity from ' " 'successive litigation of the very same claim . . . as the earlier [action].' " ' [Citation.] The driving principle behind the claim preclusion doctrine is that the parties have had a ' " 'full and fair opportunity to litigate' " ' claims alleged in the first action.' " [Citations.]" (LaCour v. Marshalls of California, LLC (2023) 94 Cal.App.5th 1172, 1189 (LaCour).)

" 'Unlike issue preclusion, which applies only to issues that were actually litigated, claim preclusion applies not just to what was litigated, but more broadly to what could have been litigated. Here, under what is sometimes known as the rule against ' "claim splitting," ' the doctrines of bar and merger do the work. (See Rest.2d Judgments, Sec. 24 (Second Restatement).) ' "Merger" ' expresses the idea that, for a winning plaintiff, all claims the plaintiff did raise or could have raised merge into the judgment in his favor. (See id., Sec. 18.)

If the plaintiff attempts to litigate any of those claims again, the judgment itself serves as a defense. ' "Bar," ' on the other hand, refers to the related idea that a judgment for a winning defendant bars the plaintiff from litigating any claims he brought or could have brought in the prior suit. (See id., Sec. 19.)' " [Citation.]" (LaCour, supra, 94 Cal.App.5th at pp. 1189 - 1190.)

The California Supreme Court has explained: "[O]ur terminology in discussing the preclusive effect of judgments has been inconsistent and may have caused some confusion. We have frequently used " 'res judicata' " as an umbrella term encompassing both claim preclusion and issue preclusion, which we described as two separate " 'aspects' " of an overarching doctrine. [Citations.] Claim preclusion, the " ' " 'primary aspect' " ' " of res judicata, acts to bar claims that were, or should have been, advanced in a previous suit involving the same parties. [Citation.] Issue preclusion, the " ' " 'secondary aspect' " ' " historically called collateral estoppel, describes the bar on relitigating issues that were argued and decided in the first suit. [Citation.]" (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823 - 824 (DKN Holdings).)

Based on the authorities cited in its demurrer, as well as the arguments made, the County is using the term res judicata to describe claim preclusion rather than issue preclusion. " 'Claim preclusion and res judicata apply to a pending proceeding only when a prior adjudication resolved, or could have resolved, the same cause of action pending in the current proceeding. [Citation.]' " [Citation.] " ' "In California[,] the phrase " 'cause of action' " is often used indiscriminately . . . to mean counts which state [according to different legal theories] the same cause of action. . .." ' [Citation.]

But for purposes of applying the doctrine of res judicata, the phrase ' "cause of action" ' has a more precise meaning: The cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced.' " [Citation.] " 'Causes of action are considered the same if based on the same primary right.' " [Citation.] " ' "[T]he primary right is simply the plaintiff's right to be free from the particular injury suffered." ' " [Citation.] " 'Thus, under the primary rights theory, the determinative factor is the harm suffered.

When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.' " [Citation.]" (Hi-Desert Medical Center v. Douglas (2015) 239 Cal.App.4th 717, 733, as modified (Sept. 15, 2015).)

With respect to Case No. 23CV02404, the County argues: "The Schwobs initiated the Prior Action on June 6, 2023, the Honorable Judge Thomas P. Anderle presiding. The Schwobs alleged that the County had a mandatory duty, abused its discretion, or otherwise failed to enforce various alleged violations related to the development on the Crosby's property: (1) unpermitted sports court, (2) grading, (3) rear set-back violations, (3) fence height, (4) grading, (5) retaining wall, and (6) noise. (RJN, Monroe Dec., Ex. 1: Judgment at p. 10.)

Following several rounds of pleading challenges in which the Court held that the County could not be liable under tort theories and did not have a ministerial duty to find or notice violations, the only cause of action that survived against the County was a writ of mandamus pursuant to Code of Civil Procedure Section 1085 for abuse of discretion. (Id.)" (Demurrer, p. 4, ll. 16 - 24.)

A review of the referenced Judgment, in conjunction with the SAPC, shows that the County's representation is true and accurate. The County argues that the Schwobs seek the same relief in this action as they did in Case No. 23CV02404: "[T]o force the County to re-investigate and require the removal of the Crosby's patio." (Demurrer, p. 5, ll. 1 - 2.) The County further argues that the Schwobs' SAPC and the current Writ involve the same primary right; removal of the pickleball court and grading.

The Schwob's own pleading and argument in opposition to the demurrer confirm that this is ultimately the goal of the current Writ. The Schwobs argue that the current Writ "challenges a completely new, post-judgment administrative default: the County's total failure to investigate, confirm violations, or take any action regarding a brand-new, detailed, formal written Notice of Violation served via U.S. Mail on September 23, 2025, nearly five months after the prior judgment was entered." (Opp., p. 2, ll. 1-4, italics omitted.)

" 'The doctrine of res judicata gives conclusive effect to a final judgment rendered upon the merits by a court having jurisdiction of the cause. [Citation.] ' "The rule is based upon the sound public policy of limiting litigation by preventing a party who has had one fair trial on an issue from again drawing it into controversy." ' [Citation.] ' "Restatement Second of Judgments views the doctrine as a bar or merger applicable to subsequent litigation between the same parties concerning the same controversy with very few exceptions.

The Restatement's approach is based on the assumption that there has been an opportunity in the first litigation for a fair and full hearing of the claim asserted. Once that opportunity has been afforded, the Restatement Second asserts, fairness dictates that the controversy in question be put to rest." ' (Italics added.) [Citation.]' " [Citation.]" (Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th 1234, 1245 (Weikel).)

" 'For purposes of identifying a cause of action under the doctrine of res judicata, ' "California has consistently applied the " 'primary rights' " theory, under which the invasion of one primary right gives rise to a single cause of action.' " [Citation.] But ' ". . . the " 'cause of action' " is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. [Citation.] Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief." ' [Citation.]" (Weikel, supra, 55 Cal.App.4th at p. 1246.)

The Schwobs did not prevail in the previous action. Now, they simply seek a second bite at the apple by framing their action as the County failing to act on a written Notice of Violation. They clearly could have proceeded by way of that mechanism in the first action. They chose not to do so. Parties cannot continue to litigate the same exact issues, seeking to enforce the same primary right, by merely changing labeling in the pleading.

The addition of the Oak Tree Protection claim does not change the result. That addition to the Writ only acts as a different legal theory and does not change the fact that it involves the same primary right. As acknowledged by the Schwobs, they did attempt to bring the tree protection issue up in the first action, but those arguments were disregarded because the Schwobs late-filed the papers that contained the argument.

To the extent that the Schwobs argue that the conditions of the current Writ did not exist until after the final judgment in the first case, the facts alleged in both actions demonstrate that to not be true. The same complaints and the same remedies are sought in both. The only difference being that the Schwobs are now attempting to resurrect their failed claims by sending a Notice of Violation to the County.

The Schwob's action is barred by claim preclusion. It involves the same primary right of removal of the patio/pickleball court and grading that was already ruled upon in the prior action. As the County points out, if the Schwobs believed the result of the prior case was legally incorrect, their remedy would have been to appeal that case. They did not do so.

The demurrer will be sustained. As the Schwobs have not shown how the Writ can be amended to state a viable cause of action, and the court believes any attempt at amendment would be futile, the Schwobs will not be given leave to amend.

Tentative Ruling: Estate of Carole J Mennie

Tentative Ruling: Estate of Carole J Mennie