Catanzarite v. City of Newport Beach

allegations, it may be pleaded in a complaint with no other causes of action, as follows:

“The sole remaining cause of action was for an accounting. The grounds alleged in the accounting cause of action were that: there was a breach of fiduciary duty; the accounts were complicated; and fraud. These are proper grounds for an accounting. (Smith v. Blodget (1921) 187 Cal. 235, 242 [201 P 584] [fiduciary relationship]; Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 14 [135 Cal.Rptr. 915] [complicated accounts when there is a dispute as to whether money is owed]; Fairbairn v. Fairbairn (1961) 194 Cal.App.2d 501, 513 [15 Cal.Rptr. 548] [fraud].)”

But the accounting claim in Union Bank failed because it had been conclusively proven that the defendant did not commit fraud or breach of fiduciary duty. As noted above, this Court has not made any factual determination regarding the merits of Vahidramezani’s claims of self-dealing and breach of fiduciary duty on the part of Jahangiri. Accordingly, the 13th cause of action for accounting may stand.

Clerk to give notice of this ruling. 13 Cornejo v. Cont. Schoolsfirst Federal Credit union 14 Padilla v. O/C Strawn 15 Kashani v. no tentative Huntington 16 Catanzarite v. Before the Court are the following motions: (1) demurrer of City of respondents City of Newport Beach and City Council of the City of Newport Newport Beach (collectively, City) directed to the verified petition for Beach writ of mandate and for writ of administrative mandamus (Petition) filed by petitioners Kenneth J. Catanzarite and Kim E. Catanzarite (collectively, Petitioners); and (2) demurrer of real parties in interest FPV II Partnership, Lawry’s Restaurants, Inc., and Ryan O. Wilson (collectively, Real Parties) directed to the Petition. For the reasons set forth below, the demurrers are OVERRULED.

The City and Real Parties are ordered to file their answers to the Petition within 20 days.

City’s Demurrer (ROA 58)

The City argues the Petition is moot because the limited term permit (LTP) at issue in this lawsuit was voluntarily surrendered by Real Parties, and the City accepted that surrender effective December 10, 2025.

“A case is considered moot when the question addressed was at one time a live issue in the case but has been deprived of life because of

events occurring after the judicial process was initiated. The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief.” (Cohen v. Superior Court (2024) 102 Cal.App.5th 706, 714 [internal citations and quotations omitted]; see also, Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 454 [“[A] case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.”].)

Although it is undisputed the LTP has been surrendered, there is nothing presented showing that Resolution No. 2025-18, by which the City approved Real Parties’ LTP application, has been rescinded or that the findings therein no longer have any force or effect. The Petition here seeks issuance of a writ of mandate directing the City to not only vacate the decision granting Real Parties the LTP, but to vacate and set aside Resolution No. 2025-18. (See Petition, Prayer for Relief, ¶¶ 1, 3.) As Petitioners point out, Resolution No. 2025-18 sets forth numerous findings and determinations regarding the outdoor dining area of the Five Crowns restaurant and its impacts on surrounding neighborhoods. (See Petition, Ex. 6.)

The City has not shown how surrender of the LTP renders these findings and determinations a nullity or that these findings cannot be used in later proceedings involving the same parties and properties at issue. The City simply states summarily that the findings set forth in Resolution 2025-18 are irrelevant now that the LTP has been surrendered. But no authority or evidence is offered to support this contention.

The City also fails to sufficiently show how considering the merits of the Petition as it relates to Resolution No. 2025-18 is tantamount to issuing an advisory opinion on a different administrative proceeding. The Court would not be making a ruling or findings concerning any separate administrative proceeding. The Court would be issuing an order as to whether the City acted within its discretion in adopting Resolution No. 2025-18.

The authorities cited by the City in the reply are distinguishable and do not support the conclusion these proceedings are moot. (See Sturgell v. Department of Fish & Wildlife (2019) 43 Cal.App.5th 35; Goldman v. Santa Barbara County (1962) 203 Cal.App.2d 454.) The City has cited no authority addressing the issue of whether surrender of a land use permit renders a mandamus proceeding directed to both the permit and a related resolution moot.

The City has not shown that all of the relief sought in the Petition is mooted by the surrender of the LTP as the City failed to show that vacatur of Resolution No. 2025-18 would have no legal or practical effect. Even if some of the relief sought is no longer available, this would not support sustaining the demurrer. “Ordinarily, a general demurrer does not lie as to a portion of a cause of action and if any part of a cause of action is properly pleaded, the demurrer will be overruled.” (Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841, 856 fn 14.)

Moreover, even if the surrender of the LTP rendered this case moot, the Court has discretion to consider the merits because the parties’ dispute over Five Crowns’ outdoor operations is likely to recur. When there may be a recurrence of the controversy between the parties, the court may exercise its discretion to decide the merits. (Environmental Charter High School v. Centinela Valley Union High School Dist. (2004) 122 Cal.App.4th 139, 144 [discussing three discretionary exceptions to the rules regarding mootness].) The City concedes in its reply that Real Parties have sought a conditional use permit for their property which application is currently pending. (See Reply at p. 4:8-13.) As such, the controversy between the parties concerning the subject property and its outdoor operations is likely to recur.

Based on the foregoing, the demurrer is OVERRULED.

The City’s request for judicial notice is GRANTED. (Evid. Code § 452(d).)

Real Parties’ Demurrer (ROA 61)

Mootness: Like the City, Real Parties contend the Petition is moot because the LTP has been voluntarily relinquished and is no longer in effect, and therefore the Court cannot grant Petitioners any effective relief in connection with the Petition. Real Parties raise essentially the same arguments as the City and cite to the same authorities pertaining to mootness, with the exception of Long v. Hultberg (1972) 27 Cal.App.3d 606, which was not cited by the City. Long, however, involves a different factual scenario and is thus distinguishable.

Accordingly, Real Parties’ demurrer based on mootness fails for the same reasons the City’s demurrer based on mootness fails. The demurrer on this ground is therefore OVERRULED.

Due Process: In addition to mootness, Real Parties argue Petitioners failed to plead a procedural or substantive due process violation. Petitioners allege denial of procedural and substantive due process in connection with the third cause of action.

“The concept of ‘due process of law’ guarantees both procedural and substantive rights.” (Bottini v. City of San Diego (2018) 27 Cal.App.5th 281, 315, citing Rental Housing Owners Assn. of Southern Alameda County, Inc. v. City of Hayward (2011) 200 Cal.App.4th 81, 93 (Hayward).) The foundational requirements of procedural due process include notice and an opportunity to be heard before depriving a party of a protected liberty or property interest. (Ibid., citing Alviso v. Sonoma County Sheriff's Dept. (2010) 186 Cal.App.4th 198, 209.) Substantive due process protects against “arbitrary legislative action.” (Bottini, supra, 27 Cal.App.5th at 315, citing Hayward, supra, 200 Cal.App.4th at 93.)

As to substantive due process, Real Parties argue summarily that Petitioners’ allegations concerning “unspecified ex parte communications” do not rise to the level of an arbitrary legislative

action. However, the due process claim is not based solely on allegations that the City engaged in ex parte communications with Real Parties. The Petition also alleges that the City violated Petitioners’ due process rights by “failing to give due consideration to any of the evidence PETITIONERS presented” and “by predetermining the matter, failing to seriously consider or deliberate on the matter, all of which gave FIVE CROWNS an unfair and improper advantage over PETITIONERS in the proceedings, and rendered the public proceedings a sham.” (Petition, ¶ 100.)

The Petition also alleges the City materially altered Real Parties’ permit application contrary to the Notice of Hearing and after public comment closed. (Petition, ¶¶ 64-67.) Real Parties fail to explain, or cite evidence demonstrating, how the foregoing allegations cannot support a substantive due process claim. The demurrer on this ground is thus not well-taken.

Because the substantive due process claim remains viable, the court need not reach Real Parties’ argument pertaining to procedural due process. (See Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841, 856 fn 14 [general demurrer does not lie as to a portion of a cause of action].)

The demurrer directed to the due process claim is thus OVERRULED.

Real Parties’ request for judicial notice as to Exhibit 1 is GRANTED as to the existence of and legal effects of the records, but not as to the truth of any disputed facts asserted therein. (Ev. Code §452(d); Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

Real Parties’ request for judicial notice as to Exhibits 2 and 3 is DENIED as the records are not relevant to the disposition of the motion. (Center for Community Action & Environmental Justice v. City of Moreno Valley (2018) 26 Cal.App.5th 689, 695, fn 4 [declining to take judicial notice of records not necessary for court’s analysis].)

Counsel for Petitioners shall give notice of these rulings. 17 City of Garden No tentative. Grove v. Weber 18 19 20 21