City of Lincoln v. The Gathering Inn

Throughout its moving papers, plaintiff argues several of defendant’s affirmative defenses fail because of the amended answer’s failure to plead facts showing administrative exhaustion. Administrative exhaustion is a jurisdictional prerequisite for judicial review. (See, e.g., Tejon Real Estate LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 156.) However, jurisdiction will not attach to the administrative body if administrative proceedings are not engaged. (Eye Dog Foundation v. State Board of Guide Dogs for Blind (1967) 67 Cal.2d 536, 543–44.)

Here, plaintiff’s SAC and defendant’s amended answer do not allege any facts that plaintiff invoked administrative proceedings but rather initiated this lawsuit. Jurisdiction, therefore, did not attach to the administrative body by way of code enforcement and thus neither party was required to exhaust administrative remedies. This argument is not a basis on which to sustain the demurrer.

Plaintiff demurs to TGI’s first affirmative defense for unlawful discrimination and sixth affirmative defense for selective enforcement and prosecution fail because neither provides a defense to nuisance, the only cause of action remaining in the SAC, and because “[a]ffirmative relief may not be claimed in the answer.” (Code Civ. Proc., § 431.30, subd. (c).) In opposition, TGI relies on City of Bakersfield v. Miller (1966) 64 Cal.2d 93 as an example of a nuisance case where defendant claimed that city officials discriminated against the defendant in enforcing a local ordinance. However, the Miller case is distinguished as the defendant there had filed a cross-complaint. Here, of course, TGI has elected to not file any cross-complaint. TGI relies on other cases that are distinguished from this case, such as Murgia v. Muni. Court for Bakersfield Jud. Dist.

(1975) 15 Cal.3d 286, a writ of mandate case arising from a criminal misdemeanor action. As affirmative relief may not be claimed by way of answer and defendant presents no case law requiring a different result, the demurrer is sustained as to the first and sixth affirmative defenses.

Plaintiff demurs to TGI’s second affirmative defense for receipt of state funds pursuant to Welfare and Institutions Code section 18999.97, which exempts projects that receive funds pursuant to Section 18999.97 from land use and zoning requirements, because the court’s ruling sustaining without leave TGI’s demurrer to the declaratory relief claim rendered the argument of whether TGI is a “qualified grantee” that received funds “pursuant to” this section outside of the court’s jurisdiction. Plaintiff also contends it has the right to exercise its police powers and enforce all of its codes within its territory and TGI’s arguments that it received funds “pursuant to” Section 18999.97 and the City may not require a Conditional Use Permit is a legal conclusion.

Plaintiff’s arguments are inconsistent and it appears the issues of whether TGI is a qualified grantee and whether TGI received funds pursuant to Section 18999.97 remain at issue for the nuisance cause of action. The demurrer is overruled as to the second affirmative defense.

Plaintiff demurs to the third affirmative defense for public and third-party interests against injunctive relief, contending that because a legislative body has enacted Lincoln Municipal Code section 8.08.050 defining a violation of the Building Code to be a public nuisance, the legislative body “has already determined that such activity is contrary to the public interest,” IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 70, and alleged harm to the public or third parties is not relevant, much less an affirmative defense to the nuisance cause of action.

This argument is too narrow, as the court must “consider all relevant evidence in determining whether, and to what extent, an injunction is the appropriate remedy for the wrong established.” (People ex rel. Burns v. Wood (2024) 103 Cal.App.5th 700, 705.) “Not every finding of nuisance will warrant an injunction. To be enjoinable, a nuisance must be both substantial and unreasonable. [Citation.]” (Id. at pp. 711–12, citation omitted.) The demurrer is overruled as to the third affirmative defense.

Plaintiff demurs to the fourth affirmative defense for fair notice and opportunity to correct and the fifth affirmative defense for violation of City Code Enforcement policies and procedures arguing the law allows any party, including a city to bring an action to abate a public nuisance and nothing in the law requires a plaintiff to give notice and an opportunity to cure. Code of Civil Procedure section 731 provides, in pertinent part: “A civil action may be brought in the name of the people of the State of California to abate a public nuisance, as defined in Section 3480 of the Civil Code, by the district attorney or county counsel of any county in which the nuisance exists, or by the city attorney of any town or city in which the nuisance exists.

Each of those officers shall have concurrent right to bring an action for a public nuisance existing within a town or city.” In its opposition, TGI raises the issue of knowledge of the nuisance for successor owners pursuant to case law and Civil Code section 3483. While plaintiff argues in its reply brief that because Civil Code section 3483 is not pleaded in the first amended answer it should be dismissed and stricken. However, as these facts are clearly raised in the amended

answer, this argument lacks merit. The demurrer is overruled as to the fourth and fifth affirmative defenses.

Plaintiff demurs to the seventh affirmative defense for mootness. Plaintiff points out that while TGI alleges the request for injunctive relief is or will be moot by trial, TGI also argues that it is addressing those Code violations. (Amended answer, ¶¶ 140, 143, 297.) While plaintiff is correct the allegations, when taken as a whole, do not adequately allege plaintiff’s claim is moot, it does adequately allege the claim may become moot by trial. The demurrer is overruled as to the seventh affirmative defense.

Plaintiff demurs to the eighth affirmative defense for inequitable conduct because once the local legislative body declares an act to be a nuisance per se, no further proof is required. (City of Costa Mesa v. Soffer (1992) 11 Cal.App.4th 378, 382.) However, this argument is too narrow for the same reasons as the court notes above for the third affirmative defense. The demurrer is overruled as to the eighth affirmative defense.

Based on the foregoing, the demurrer to the first amended answer to the SAC is sustained as to the first and sixth affirmative defenses and otherwise overruled. Defendant bears the burden of demonstrating how its amended answer may be amended to cure the defects therein. (Jensen v. The Home Depot, Inc. (2018) 24 Cal.App.5th 92, 97.) Defendant falls short of its burden of showing the defects are curable. Accordingly, leave to amend is denied.

Motion to Strike Affirmative Defenses

Plaintiff moves to strike The Gathering Inn (“TGI”)’s first through eighth affirmative defenses and factual allegations commencing at paragraph 236 of TGI’s first amended answer to the second amended complaint. (Code Civ. Proc., §§ 435, 436.)

Plaintiff’s motion to strike is denied as moot as to the first and sixth affirmative defenses in light of the court’s above ruling on the demurrer. Plaintiff’s motion to strike is denied as to the second, third, fourth, seventh, and eighth affirmative defenses and as to the factual allegations beginning at paragraph 236 for the same reasons as outlined in the court’s above ruling on the demurrer. This includes the factual allegations at paragraphs 267 through 274 and 296 through 297 (the facts supporting the affirmative defenses on which the demurrer is sustained) because these factual allegations are incorporated by reference to other affirmative defenses.

Plaintiff’s motion to strike is denied in its entirety.

12. S-CV-0053821 Urbina, Eden v. TimCo Construction Inc.

Moving party is advised the notice of motion must include the court’s tentative ruling procedures. (Local Rule 20.2.3(C).)

Motion to be relieved as counsel

The motion to be relieved as counsel for plaintiff is granted, effective upon the filing of a proof of service of the signed order on all parties.

13. S-CV-0054125 Servantez, Angelina v. PCJV USA

Moving party is advised the notice of motion must include the court’s tentative ruling procedures. (Local Rule 20.2.3(C).)

Motion to be relieved as counsel

The motion to be relieved as counsel for plaintiff is granted, effective upon the filing of a proof of service of the signed order on all parties.

14. S-CV-0054343 Hall, Linda Leon v. Helmer, Virgil Alan

Motion to set aside the December 15, 2025 order granting ex parte application

Defendant Virgil Alan Helmer moves to set aside the court’s December 15, 2025 order granting plaintiff’s ex parte application. Plaintiff did not file a response.

Defendant failed to file a responsive pleading in this action after service of the summons and complaint, and his default was entered on March 18, 2025. Entry of default cuts off defendant’s right to appear in this action and participate in the proceedings, unless and until the default is set aside. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386.) Even if the court could consider defendant’s motion, which it cannot in light of his default, he fails to demonstrate service. All moving papers and supporting documents shall be served and filed at least 16 court days before the hearing, with notice extended based on the manner of service. (Code Civ. Proc., §§ 1005(b), 1010.6.) Based on the foregoing, the motion is denied.

15. S-CV-0056119 Ismail, Sellam v. Jang DDS Inc.

Demurrer to the Complaint

Defendant Jang DDS Incorporated dba Smile Time Dental demurs to the second through sixth causes of action alleged in the complaint pursuant to Code of Civil Procedure section 430.10(e) on the grounds each cause of action fails to allege sufficient facts to constitute valid claims. Additionally, defendant states plaintiff's fifth cause of action for violation of Business and Professions Code § 17200 - Unfair Competition is ambiguous

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