1 filing fee exempt pursuant to government code§ …...government code§ 6103 ariel pierre calonne,...

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28 BURKE, WILLIAMS &

SORENSEN, LLP ATTORNEYS AT LAW

OAKLAND

Thomas B. Brown (SBN 104254) E-mail: [email protected] Mark J. Austin (SBN 208880) E-mail: [email protected] Nicholas J. Muscolino (SBN 273900) E-mail: [email protected] BURKE, WILLIAMS & SORENSEN, LLP 1901 Harrison Street, Suite 900 Oakland, CA 94612-3501 Tel: 510.273.8780 Fax: 510.839.9104

FILING FEE EXEMPT PURSUANT TO GOVERNMENT CODE§ 6103

Ariel Pierre Calonne, City Attorney (SBN 110268) E-mail: [email protected] Tom R. Shapiro, Assistant City Attorney (SBN 127383) E-mail: [email protected] CITY OF SANTA BARBARA 740 State Street, Suite 201 Post Office Box 1990 Santa Barbara, CA 93102-1990 Tel: 805.564.5326 Fax: 805.897.2532

Attorneys for Respondents/Defendants CITY OF SANTA BARBARA; MEMBERS OF THE SANTA BARBARA CITY COUNCIL

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SANTA BARBARA, SOUTH COUNTY

SANTA BARBARA ASSOCIATION OF REALTORS and ROBERT D. HART,

Petitioners/Plaintiffs,

V.

CITY OF SANTA BARBARA and MEMBERSOFTHESANTABARBARA CITY COUNCIL, in their official capacities,

Respondents/Defendants.

IRV #4832-4154-8396 v3

Case No. 17CV04720

Assigned for All Purposes to Honorable Judge Colleen Sterne, Dept. 5

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF RESPONDENTS'/DEFENDANTS' DEMURRER TO VERIFIED SECOND AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF, OR, ALTERNATIVELY, MOTION TO STRIKE PORTIONS THEREOF

[Filed concurrently with Notice of Demurrer and Demurrer to Verified Second Amended Petition for Writ of Mandate and Complaint for Declaratory Relief, or Alternatively, Motion to Strike Portions Thereof; Declaration of Mark J. Austin; and Request for Judicial Notice in Support Thereof]

Date: August 27, 2018 Time: 9:30 AM Place: Dept. 5

Action Filed: Trial Date:

October 19, 2017 None Set

MEMO OF PS AND AS IN SUPPORT OF DEMURRER TO AND/OR MOTION TO STRIKE SAP

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I.

II.

III.

IV.

V.

TABLE OF CONTENTS

Page

INTRODUCTION .............................................................................................................. 1

FACTUAL AND PROCEDURAL BACKGROUND ........................................................ 3

A. Summary of Key Allegations and Judicially Noticeable Facts ............................... 3

B. This Court's Ruling on Demurrer to FAP ............................................................... 4

STANDARD OF REVIEW ................................................................................................ 5

ARGUMENT ...................................................................................................................... 5

A. All Challenges Under the Fourth Amendment Fail on the Merits .......................... 6

B. All Challenges on Vagueness Grounds Fail on the Merits ..................................... 8

C. All Facial Challenges are Barred by the Statute(s) of Limitations ....................... 10

D. All As-Applied Challenges Based on Hart's ZIR in March of 2017 and Inspection in April of 2017 are Barred by the 90-Day Statute of Limitations ...... 12

E. All As-Applied Challenges to the ZIR Ordinance Based on Hart's Current Desire to Sell His Home are Barred as Unripe, and On the Merits ...................... 13

F. All As-Applied Challenges Based on SBOAR's Alleged Payment of Taxes Fail Because They Do Not Allege Any Actual Application of the Law to SBAOR ................................................................................................................. 14

CONCLUSION ................................................................................................................. 15

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TABLE OF AUTHORITIES

Federal Cases

Kolender v. Lawson

Page(s)

(1983) 461 U.S. 352, 357 ............................................................................................................ 9

Sanchez v. County. of San Diego (9th Cir. 2006) 464 F.3d 916 ....................................................................................................... 8

Schneckloth v. Bustamante (1973) 412 U.S. 218 .................................................................................................................... 6

Shelter Creek Development Corp. v. City of Oxnard (9th Cir. 1988) 838 F.2d 375 ..................................................................................................... 14

State Cases

Alfaro v. Terhune (2002) 98 Cal.App.4th 492 ....................................................................................................... 15

Associated Homebuilders of the Greater East Bay, Inc. v. City of Livermore (1976) 18 Cal.3d 582 .................................................................................................................. 9

Berry v. City of Santa Barbara (1995) 40 Cal.App.4th 1075 ....................................................................................................... 7

City of L.A. v. Belridge Oil Co. (1954) 42 Cal.2d 823 .................................................................................................................. 7

County of Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312 ............................................................................................. 12, 15

Currier v. City of Pasadena (1975) 48 Cal.App.3d 810 ........................................................................................................... 7

De Young v. City of San Diego (1983) 147 Cal.App.3d l 1 ......................................................................................................... 10

De Young v. City of San Diego (1983) 147 Cal.App.3d 11, 18 ..................................................................................................... 7

Duncan v. McCaffeey Grp., Inc. (2011) 200 Cal.App.4th 346 ....................................................................................................... 5

Gonzalez v. Cnty. of Tulare (1998) 65 Cal.App.4th 777 ....................................................................................................... 12

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1 Guardian North Bay, Inc. v. Superior Court

2 (2001) 94 Cal.App.4th 963 ......................................................................................................... 5

3 Hensler v. City of Glendale

(1994) 8 Cal.4th 1 ..................................................................................................................... 12

4 In re Huddleson

5 (1964) 229 Cal.App.2d 618 ................................................................................................... 9, 10

6 Kopp v. Fair Pol. Practices Com.

7 (1995) 11 Cal.4th 607 ............................................................................................................. 7, 9

8 Larson v. UHS of Rancho Springs, Inc.

(2014) 230 Cal.App.4th 336 ....................................................................................................... 5

9 Mez Industries, Inc. v. Pacific Nat. Ins. Co.

10 (1999) 76 Cal.App.4th 856 ......................................................................................................... 5

11 Otay Land Co. v. Royal Indemnity Co. (2008) 169 Cal.App.4th 556 ..................................................................................................... 14

12

13 Pacific Legal Foundation v. California Coastal Comm.

(1982) 33 Cal.3d 158 .......................................................................................................... 13, 14

14 Parrish v. Civil Service Commission

15 (1967) 66 Cal.2d 260, 271-72 ..................................................................................................... 8

16 Performance Plastering v. Richmond Am. Homes of Cal., Inc. (2007) 153 Cal.App.4th 659 ....................................................................................................... 5

17

18 People v. Rivera

(2007) 41 Cal.4th 304 ................................................................................................................. 6

19 Stockton Citizens For Sensible Planning v. City of Stockton

20 (2012) 210 Cal.App.4th 1484 ................................................................................................... 12

21 Stonehouse Homes LLC v. City a/Sierra Madre (2008) 167 Cal.App.4th 531 ..................................................................................................... 14

22 People v. Superior Court (Caswell)

23 (1988) 46 Cal.3d 381 ................................................................................................................ 10

24 Tellis v. Municipal Court

25 (1970) 5 Cal.App.3d 455 ............................................................................................................. 8

26 Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069 ....................................................................................................... 8, 9, 15

27 Tower Lane Props. v. City of Los Angeles

28 (2014) 224 Cal.App.4th 262 ................................................................................................. 7, 10 BURKE, WILLIAMS &

SORENSEN, LLP

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ATTORNEYS AT LAW MEMO OF PS AND AS IN SUPPORT OF DEMURRER TO AND/OR MOTION TO STRIKE SAP DA Kl.AND

1 Travis v. City of Santa Cruz

2 (2004) 33 Cal.App.4th 757 ....................................................................................................... 10

3 Walker v. Superior Court

(1988) 47 Cal.3d 112, 143 .......................................................................................................... 9

4 Williams v. Garcetti

5 (1993) 5 Cal.4th 561 ................................................................................................................... 9

6 Yamaha Corp of Am. v. State Bd. Of Eq.

7 (1998) 19 Cal.4th 1 ..................................................................................................................... 7

8 State Statutes

9 Code of Civil Procedure

§ 338(a) ............................................................................................................................. 2, 4, 10

10 § 430.10 .................................................................... "" ............................................................... 5 § 430.30 ............................................................................................................. "" ...................... 5

11 § 526a ........................................................................................................................................ 15

12 § 1085 .......................................................................................................................................... 5 § 1822.50 ..................................................................................................................................... 7

13 §§ 1822.50 et seq . ................................................................................................................... 7, 8 § 1822.51 ..................................................................................................................................... 7

14 Government Code

15 § 65009(c)(l)(B) ................................................................................................................... 2, 11

16 § 65009(c)(l)(E) .......................................................................................................... 2, 4, 11, 12 § 65009(c)(l)(E) ........................................................................................................................ 12

17 Planning and Zoning Law ............................................................................................................... 12

18 ZIR Ordinance ......................................................................................................................... passim

19 Zoning Ordinance .................................................................................................................... 3, 7, 11

20 Other Authorities

21 64 Ops. Cal. Atty. Gen. 762 ............................................................................................................ 11

22 Due Process Clause ........................................................................................................................... 8

23

24 Fourth Amendment ................................................................................................................. passim

25 Santa Barbara Municipal Code

§ 28.87.220 .................................................................................................................................. 1

26 § 28.87.220(A) .......................................................................................................................... 11 § 28.87.220(C)(l) ...................................................................................................................... 13

27 § 28.87.220(D) .......................................................................................................................... 11

28 § 28.87.220(D)(7) ...................................................................................................................... 11

BURKE, WILLIAMS & SORENSEN, LLP

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ATTORNEYS AT LAW

OAKLAND MEMO OF PS AND AS IN SUPPORT OF DEMURRER TO AND/OR MOTION TO STRIKE SAP

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City Charter § 604(g) ...................................................................................................................................... 7 § 703(a) ...................................................................................................................................... 7

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ATTORNEYS AT LAW MEMO OF PS AND AS IN SUPPORT OF DEMURRER TO AND/OR MOTION TO STRIKE SAP OAKLAND

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I. INTRODUCTION

In their ill-conceived Second Amended Petition and Complaint ("SAP"), Petitioners and

Plaintiffs Santa Barbara Association of Realtors ("SBA OR") and Robert D. Hart ("Hart," and

collectively with SBAOR, "Petitioners") seek to take a second bite at the proverbial apple, by

raising claims that either (a) were already dismissed by this Court, in response to the demurrer

filed by Respondents and Defendants City of Santa Barbara and the Santa Barbara City Council

( collectively, "City") to Petitioners' First Amended Petition and Complaint ("F AP") (Demurrer

Ruling, pp. 16-18 [City's Request for Judicial Notice in Support of Demurrer to SAP ("RJN"),

Exh. 4]), or (b) to the extent they were not already raised in the FAP, are equally unsupported by

the law and facts. In fact, although this Court's prior ruling expressly invited Petitioners to

expand upon one of its potential "coercion" claims, Petitioners instead abandoned that theory in

the SAP, and thereby failed to pursue the one avenue the Court left them.

At the core of this case is Petitioners' challenge to Santa Barbara Municipal Code

("SMBC") section 28.87.220 (the "ZIR Ordinance") (SAP, Exh. A) on the ground that it

allegedly requires the City to conduct warrantless, non-consensual searches of residential

properties as a prerequisite to the sale of those properties, in violation of the Fourth Amendment.

Although Petitioners admit that the City interprets the key term of the ordinance-"physical

inspection" (SBMC § 28.87.220(D)(7) [SAP, Exh. A])-as requiring only an inspection of the

exterior of a property absent consent to an interior search (see SAP,~~ 49, 44-50; FAP, Exh. E

[RJN, Exh. 4]; RJN, Exh. 1), Petitioners nevertheless persist with their claim under the Fourth

Amendment. Moreover, Petitioners also now assert (for the first time) that the City's valid

interpretation of the term "physical inspection" somehow renders the ordinance unconstitutionally

vague. After this Court sustained a demurrer to all causes of action in the F AP, Petitioners filed

the SAP, which raises nearly identical claims, and is likewise subject to a complete demurrer.

First, the SAP challenges the ZIR Ordinance on its face under both the Fourth

Amendment (SAP,~~ 69, 83), and for vagueness (SAP,~ 103). However, as already determined

by this Court (see Demurrer Ruling, p. 16 [RJN, Exh. 5]), all facial challenges to the ZIR

Ordinance that are independent of any as-applied challenges are barred under the three-year - 1 -

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statute oflimitations set forth in Code of Civil Procedure section 338(a) (applicable to any "action

upon a liability created by statute"), because the last time the ZIR Ordinance was amended was in

2010 (SAP, ,r 11, and Exh. A), and this lawsuit was filed in 2017 .1

Second, the SAP challenges the ZIR Ordinance as applied to Petitioner Hart, under both

the Fourth Amendment and for vagueness, in relation to (1) his application for a ZIR in March of

2017 and the related search of his home on April 4, 2017 (SAP, ,r,r 2, 66, 80, 100, 109-118), and

(2) his alleged "current residential property that he wishes to sell" (SAP, ,r,r 2, 67, 81, 101, 109-

118). With respect to the first claim, as this Court has already determined, Hart's challenge is

barred by the 90-day statute of limitations set forth in Government Code section 65009( c )(1 )(E)

(applicable to zoning-related decisions), because this lawsuit was filed more than 90 days after

Hart's last interaction with the City regarding the ZIR in April of 2017. (Demurrer Ruling, p. 17

[RJN, Exh. 5].) With respect to the second basis (a new claim not raised in the PAP), it alleges no

actual application of the ordinance against Hart, and is thus not ripe for review.

Third, the SAP challenges the ZIR Ordinance as applied to SBAOR based on the

allegation that the ordinance purportedly requires SBAOR to "pay taxes to facilitate and enforce

an unconstitutional program." (SAP, ,r,r 68, 82, 102, 109-118.) This new claim patently fails

because SBOAR does not allege any facts showing an actual application of the ZIR Ordinance to

that entity. Without such allegations, SBAOR cannot make an "as applied" challenge.

Finally, separate from the foregoing grounds, all challenges to the ZIR Ordinance fail on

the merits as a matter oflaw. With respect to Petitioners' claims for violation of the Fourth

Amendment, because the City interprets the ZIR Ordinance as not requiring an inspection of the

interior of the subject property (see SAP, ,r,r 44-50; PAP, Exh. E (RJN, Exh. 4)), the ZIR

Ordinance does not require warrantless, non-consensual property searches, thereby eliminating

any claim for violation of the Fourth Amendment. With respect to Plaintiffs' vagueness

challenges, as a matter of law, the ZIR Ordinance is not unconstitutionally vague.

For the foregoing reasons, this Court should sustain the City's demurrer to the SAP

1 The City also believes that these claims are barred by the 90-day statute of limitations under Government Code section 65009( c )(1 )(B), applicable to challenges to zoning ordinances.

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without leave to amend. Alternatively, the Court should grant the City's motion to strike those

portions of the SAP that implicate time-barred claims or run counter to settled law.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Summary of Key Allegations and Judicially Noticeable Facts

The City Council of the City of Santa Barbara enacted the ZIR Ordinance in 1976, and

last amended it in 2010. (SAP,~ 11, and Exh. A.) The ZIR Ordinance requires a residential

property owner seeking to sell its property to obtain, prior to that sale, a Zoning Information

Report ("ZIR") from the City, "setting forth matters of City record pertaining to the authorized

use, occupancy, zoning and the result of a physical inspection of the property." (SBMC §

28.87.220(A) [SAP, Exh. A] [emphasis added].) Under the ZIR Ordinance, it is unlawful "for any

owner to consummate the transfer of title to any residential property without providing the

transferee with a Zoning Information Report." (Id. at§ 28.87.220(D).)

A seller of residential property is required to apply for a ZIR no later than five days after

entering into an agreement for the sale of its property. (SBMC § 28.87.220(C)(l) [SAP, Exh. A].)

The ZIR is required to include certain information relating to the zoning and use of the property,

including but not limited to (a) the zone classification and permitted uses under the Zoning

Ordinance; (b) any additional permitted uses under the established records; ( c) the variances,

special use permits, and other administrative acts relating to the allowable uses; ( d) any special

restrictions on the use; and ( e) "[t]he results of a physical inspection for compliance with the

Zoning Ordinance and for compliance with Chapter 14.46 of this Code [i.e., the Private Sewer

Lateral Inspection Program]." (Id. at§ 28.87.220(D) [emphasis added].)

The term "physical inspection" is not defined in the ZIR Ordinance. (SBMC §

28.87.220(D)(7) [SAP, Exh. A].) However, the City Attorney has expressly interpreted this term

to mean a visual inspection of the exterior of the property, without the need/or inspection of the

interior unless the owner consents thereto, and the City Administrator has adopted that

interpretation. (SAP,~~ 49, 44-50; FAP, Exh E [RJN, Exh. 4]; RJN, Exh. 1.)

Thus, after a property owner applies for a ZIR, City staff conducts a visual inspection of

both the exterior and interior of all residential units and accessory structures, and the entire - 3 -

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grounds, if the owner consents thereto. (SAP, ,r,r 44-50, and Exh. B; see also FAP, ,r 22, and

Exhs. D and E [RJN, Exh. 4].) However, if the owner declines consent for an interior and/or

curtilage inspection, City staff conducts a visual inspection of as much of the property as is

visible from public viewing points. (SAP, ,r,r 44-50; FAP, Exhs. D and E [RJN, Exh. 4].) As long

as the property owner obtains a ZIR, it may sell its residential real property regardless of whether

it consented to an interior or curtilage search. (SBMC § 28.87.220(H) [SAP, Exh. A]; SAP, ,r,r

44-50; FAP, ,r 22, and Exhs. D and E [RJN, Exh. 4]; RJN, Exh. 1.)

B. This Court's Ruling on Demurrer to FAP

In its ruling on the demurrer to the F AP, the Court read that pleading as making three

distinct challenges under the Fourth Amendment (Demurrer Ruling, pp. 17-18 [RJN, Exh. 5]):

• A facial challenge, which the Court held was time-barred under Code of Civil Procedure

section 338(a) because the ordinance was last amended in 2010 (id. at p. 16);

• A challenge to the City's enforcement policy of June 21, 2017 (FAP, Exh. E [RJN, Exh.

4 ]), which the Court held was time-barred by the 90-day limitations period set forth in

Government Code section 65009( c )(1 )(E) (id. at pp. 16-17); and

• An as-applied challenge based on Hart's April 2017 "physical inspection"-premised on

the theory that a reporting of lack of consent to potential buyers was a form of

"coercion"-which the Court held was time-barred under Section 65009(c)(l)(E) because

any alleged "coercion" ended in April of 2017 (id. at p. 17).

In addition to these claims, the Court also noted that the F AP could be read as raising a

fourth challenge based on its Exhibit D, which was a ZIR dated August 31, 2017, containing a

handwritten note stating: "Staff cannot confirm if any other violations exist based on the limited

access to the site." (Demurrer Ruling, pp. 17-18 [RJN, Exh. 5]; FAP, Exh. D [RJN, Exh. 4].)

Although the Court observed that this ZIR was issued within 90 days of the filing of this lawsuit

on October 19, 2017, and thus was potentially not barred by Section 65009(c)(l)(E), it ultimately

held that the allegations on this claim were too uncertain, and invited Petitioners to expand it with

more facts. (Demurrer Ruling, p. 18 [RJN, Exh. 5].) The SAP, however, neither contains nor

references this August 31, 2017 ZIR, meaning Petitioners abandoned this one available theory. - 4 -

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III. STANDARD OF REVIEW

"A demurrer tests the sufficiency of the allegations in a complaint as a matter of law."

(Mez Industries, Inc. v. Pacific Nat. Ins. Co. (1999) 76 Cal.App.4th 856, 864.) Thus, a demurrer

to a cause of action is properly sustained where the plaintiff fails to plead each element of the

cause of action (Code Civ. Proc.§§ 430.10, 430.30), or where a complete defense appears from

· either the face of the complaint or from matters subject to judicial notice. (Guardian North Bay,

Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) In ruling on a demurrer, in addition

to considering the complaint's allegations, a court may also consider "matters shown in exhibits

attached to the complaint and incorporated by reference." (Performance Plastering v. Richmond

Am. Homes of Cal., Inc. (2007) 153 Cal.App.4th 659, 665.) "If the facts appearing in the attached

exhibit contradict those expressly pleaded, those in the exhibit take precedence." (Duncan v.

McCajfrey Grp., Inc. (2011) 200 Cal.App.4th 346, 360.) In addition, a plaintiff is bound not only

by the allegations in its operative pleading, but also by allegations made in their prior pleadings.

(Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 344.)

IV. ARGUMENT

Petitioners allege four causes of action in the SAP, divided ostensibly by their legal

theories, as follows: (1) the First Cause of Action, for writ of mandate (Code Civ. Proc. § 1085),

to enjoin enforcement of the ZIR Ordinance because it allegedly requires warrantless, non-

consensual searches ofresidential properties, in alleged violation of the Fourth Amendment

(SAP, ,r,r 71, 60-69); (2) the Second Cause of Action, for writ of mandate (Code Civ. Proc.§

1085), to enjoin enforcement of the ordinance because it allegedly conditions peoples' receipt of

an unspecified "public benefit" on the waiver of their Fourth Amendment rights (SAP, ,r,r 85, 76-

83); (3) the Third Cause of Action, for writ of mandate (Code Civ. Proc. § 1085), to enjoin

enforcement of the ordinance because it is allegedly void for vagueness (SAP, ,r,r 105, 92-99);

and (4) the Fourth Cause of Action, for a declaration that the ordinance violates the Fourth

Amendment as applied to Hart (SAP, ,r,r 109-120).

Within these claims, Petitioners make a mix of facial and as-applied challenges. The First

through Third Causes of Action all purport to make both facial challenges under their respective - 5 -

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theories, and as-applied challenges under the following theories:

• An as-applied challenge on behalf of Petitioner Hart, based on his application for a ZIR in

March of 2017 and the search of his home on April 4, 2017 (SAP, ~~ 2, 66, 80, 100);

• A second as-applied challenge on behalf of Hart, based on his alleged "current residential

property that he wishes to sell" (a new claim) (SAP,~~ 2, 67, 81, 101, 109-118); and

• An as-applied challenge on behalf of SBA OR based on the allegation that the ZIR

Ordinance purportedly requires SBAOR to "pay taxes to facilitate and enforce an

unconstitutional program" ( another new claim) (SAP, ~~ 68, 82, 102, 109-118).

Conspicuously absent from the SAP are (1) any allegation that the ordinance constitutes

coercion (a term that appeared in multiple locations of the FAP) (see, e.g., FAP, ~~ 28, 31, 39, 47

[City RJN, Exh. 4]), and (2) any reference to the August 31, 2017 ZIR that was attached to the

FAP as Exhibit D, mentioned by the Court (Demurrer Ruling, pp. 17-18 [City's RJN, Exh. 5]).

As discussed below, each of Petitioners' theories fails to state a valid claim.

A. All Challenges Under the Fourth Amendment Fail on the Merits

All of Petitioners' claims under the Fourth Amendment (raised in the First, Second, and

Fourth Causes of Action) fail on the merits because the ZIR Ordinance does not require

warrantless searches of properties as a matter of law. Under the Fourth Amendment, " [ t ]he right

of the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause,

supported by oath or affirmation, and particularly describing the place to be searched, and the

persons or things to be seized." (U.S. Const., 4th Amend.)

Where a property owner consents to the government's search of his or her property, the

Fourth Amendment is not violated. (Schneckloth v. Bustamante (1973) 412 U.S. 218,219 ["one

of the specifically established exceptions to the [Fourth Amendment's] requirements of both a

warrant and probable cause is a search that is conducted pursuant to consent"]; People v. Rivera

(2007) 41 Cal.4th 304, 311 ["Fourth Amendment's prohibition against warrantless searches of

homes does not apply when voluntary consent to the search has been given ... "].) Thus,

Petitioners cannot claim that the ZIR Ordinance violates the Fourth Amendment, for they have - 6 -

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admitted, both in the SAP and in prior pleadings, that the City applies the "physical inspection"

requirement (SBMC § 28.87.220(D)(7) [SAP, Exh. A]) as requiring only an inspection of a

property's exterior (specifically, that which can be viewed from "a sidewalk, or other public

space, to observe the exterior of a property" [SAP,~ 49]), unless the property owner consents to

an interior inspection. (SAP,~~[ 44-50; FAP, Exhs. D and E [RJN, Exh. 4]; RJN, Exh. I.)2

California law affords great deference to the City's interpretation of its own ordinances,

entitling such interpretations to "great weight" unless they are "clearly erroneous." (De Young v.

City a/San Diego (1983) 147 Cal.App.3d 11, 18 [charter city interpretation of ordinances],

overruled on other grounds by 1!{1mahaCorP,0/4~.{V.0

State.pd. O/Eq.{1998}1~~Qa1Ath.1;

Tower Lane Props. v. City of Los Angeles (2014) 224 Cal.App.4th 262,277 [same].) Moreover,

when an ordinance or other law is subject to multiple interpretations, courts are hound to

interpret it in a manner that upholds its constitutionality. (Kopp v. Fair Pol. Practices Com.

(1995) 11 Cal.4th 607, 644-45, 649; City of L.A. v. Belridge Oil Co. (1954) 42 Cal.2d 823, 831-

33). Thus, an ordinance will not be invalidated on constitutional grounds where it is susceptible to

a narrowing construction that would render it constitutional. (Berry v. City of Santa Barbara

(1995) 40 Cal.App.4th 1075, 1082-1083.)

Indeed, California courts have a specific history of construing local "inspection"

ordinances consistently with the Fourth Amendment, based on state statutory law addressing this

issue. Under Code of Civil Procedure sections 1822.50 et seq., a public entity cannot "conduct

any inspection required or authorized by state or local law ... relating to zoning" unless it first

obtains an inspection warrant or the property owner's consent to the inspection. (Code Civ. Proc.

§§ 1822.50, 1822.51.) In light of these statutes, courts have repeatedly upheld the validity of

ordinances that purport to authorize warrantless, zoning-related inspections by reading them in

conjunction with these provisions. (Currier v. City of Pasadena (1975) 48 Cal.App.3d 810, 814,

2 The Santa Barbara City Charter vests the City Attorney, upon request, with the duty and authority to advise the City Council and City officials on legal issues. (City Charter§ 703(a) [RJN. Exh. 2].) Similarly, the Zoning Ordinance charges the City Attorney with interpreting the Zoning Ordinance. (SBMC § 29.98.001 [RJN, Exh. 3]; City Charter§§ 604(g), 703{a) [RJN, Exh. 2].) Moreover, the City Charter confers on the City Administrator the authority to supervise the enforcement of City ordinances. (Id. at § 604(g).)

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817, cert. den. 423 U.S. 1000 [upholding constitutionality of ordinance requiring certificate of

occupancy after each vacancy because Sections 1822.50 et seq. require a warrant for inspections

absent consent]; Tellis v. Municipal Court (1970) 5 Cal.App.3d 455, 457-458 [upholding

ordinance requiring occupancy permit for residential use of moored vessel].)

Based on this law, this Court should uphold the City's constitutional construction of the

ZIR Ordinance, thereby defeating Petitioners' claims under the Fourth Amendment. The City's

interpretation-which has admitted by Petitioners in both the F AP and the SAP-is consistent

with the Fourth Amendment, and is not "clearly erroneous." As such, it should be accepted by

this Court in lieu or Petitioners' proposed unconstitutional construction. Based on the City's

interpretation, Petitioner cannot state a claim under the Fourth Amendment.3

B. All Challenges on Vagueness Grounds Fail on the Merits

Petitioners' second challenge to the ZIR Ordinance (raised in the Third Cause of Action)

is an odd one. Petitioners assert that the term "physical inspection" is unconstitutionally vague-

not because the average person cannot understand what it means, but because, according to

Petitioners, it can only be read as requiring an interior inspection of a property, such that the

City's more narrow, constitutional construction renders it vague. (SAP, 1195-105.) In other

words, according to Petitioners, the ordinance is only "vague" because the City has given it a

constitutional construction consistent with Petitioners' request.

Under the vagueness doctrine, a statute or ordinance carrying criminal penalties violates

the Due Process Clause if it fails to "define the offense with sufficient precision that 'ordinary

people can understand what conduct is prohibited and in a manner that does not encourage

arbitrary and discriminatory enforcement."' (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069,

3 Petitioners' Second Cause of Action is based on the "doctrine of unconstitutional conditions," under the apparent theory that the City "conditions" owners' rights to sell their properties on consenting to an unconstitutional search. The reasoning set forth above shows that this is not true-that the City allows residential property sales to occur based on a mere exterior inspection, without the need an interior search. Under the doctrine of unconstitutional conditions, a plaintiff must first establish that a constitutional right is infringed upon. (San~hez v. County. of Sa,n Diego (9th Cir. 2006).464 F.3d 916, 930-31, citing Parrish v .. Civ/Z .. Seryice{Zo111c111iss.io.1:i.CI9.6;J.).66 Cal:i

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1106 [quoting I(()lh1defJJ;'L0

~wson(i98:3)4pl§U.f:352,3S?]; Williams v. Garcetti (1993) 5

Cal.4th 561, 567.) However, "[o ]nly a reasonable degree of certainty is required," for there is a

"'strong presumption that legislative enactments must be upheld unless their unconstitutionality

clearly, positively, and unmistakably appears."' (Tobe, supra, 9 Cal.4th at p. 1107 [ quoting

Walker v. Superior Court (1988) 47 Cal.3d 112, 143].) Moreover, a law '"cannot be held void for

uncertainty if any reasonable and practical construction can be given to its language."' (Ibid.

[emphasis added].) Thus, "courts should construe enactments to give specific content to terms

that might otherwise be unconstitutionally vague." (Associated Homebuilders of the Greater East

Bay, Inc. v. City of Livermore (1976) 18 Cal.3d 582, 598 [ construing otherwise uncertain zoning

ordinance in manner that upheld its constitutionality].)

Petitioner's argument is directly contrary to the above law. Under that law, if the City

itself had not given the ordinance a narrowing construction that saved it from a vagueness or

other constitutional challenge, then this Court would have been required to do so. (In re

Huddleson (1964) 229 Cal.App.2d 618, 624 [in upholding ordinance criminalizing "loitering"

against vagueness challenge, stating: "[w]here a statute or ordinance is susceptible of two

constructions, one of which will render it constitutional and the other unconstitutional ... the

court will adopt the construction which, without doing violence to the reasonable meaning of the

language used, will render it valid in its entirety, or free from doubt as to its constitutionality,

even though the other construction is equally reasonable."] [internal quotations omitted]; Kopp,

supra, 11 Cal.4th at pp. 644-45, 649 [limiting construction necessary if it saves statue or

ordinance from constitutional challenge]; Walker, supra, 47 Cal.3d at p. 143.) Thus, not only does

the City's interpretation not render the ordinance vague as Petitioners suggest, it actually saves it

from any vagueness challenge.

Moreover, even absent the City's express construction, the ordinance would still not be

considered unduly vague. Cases abound in which courts have upheld statutes with terms far more

uncertain than "physical inspection," where the challenged terms were likely to be given a

reasonable construction by the average person. (See, e.g., Tobe, supra, 9 Cal.4th 1069, 1107-1108

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certain in light of likely reasonable interpretation of those terms]; People v. Superior Court

(Caswell) (1988) 46 Cal.3d 381, 391-392 [terms "lewd" and "lascivious" held sufficiently certain

under pre-existing law]; In re Huddleson (1964) 229 Cal.App.2d 618, 624 [ordinance prohibiting

"loitering" not unduly vague in light ofreasonable construction likely to be given to term].)

Certainly, the term "physical inspection" is far clearer than the terms upheld in the above

cases. Indeed, the average person reading the ZIR Ordinance would likely assume that a "physical

inspection" could only occur in those areas to which the City could lawfully gain access. To read

the statute otherwise would be to imagine an unjustified "parade of horribles" of the government

entering properties without lawful authority. Moreover, it would be inconsistent with the above

case law, which requires the adoption of a reasonable interpretation that renders it constitutional.

Based on the above law, under which courts are required to adopt a reasonable, narrow

construction of an ordinance that will save it from constitutional challenge for vagueness,

Petitioners' vagueness challenge fails on the merits. Indeed, as noted above, state law affords

great deference to a city's interpretation of its own ordinances, entitling them to "great weight"

unless "clearly erroneous." (De Young, supra, 147 Cal.App.3d at p. 18; Tower Lane Props.,

supra, 224 Cal.App.4th at p. 277.) Thus, Petitioners' vagueness challenge must be rejected.

C. All Facial Challenges are Barred by the Statute(s) of Limitations

In addition to failing on the merits, as this Court has already ruled , all facial challenges to

the ZIR Ordinance that are independent of valid as-applied challenges fail on statute of

limitations grounds, whether based on a violation of the Fourth Amendment (the First and Second

Causes of Action) (SAP, 1169, 83), or vagueness (the Third Cause of Action) (SAP, 1103).

In the Demurrer Ruling regarding the F AP (RJN, Exh. 5), this Court determined that,

based on the case of Travis v. City of Santa Cruz (2004) 33 Cal.App.4th 757, facial challenges to

the ZIR Ordinance that are not combined with any valid as-applied challenge are barred by the

three-year statute of limitations set forth in Code of Civil Procedure section 338(a), which applies

to any "action upon a liability created by statute, other than a penalty or forfeiture," because the

last time the ZIR Ordinance was amended was in 2010 (SAP, 1 11, and Exh. A [ second page]),

and this lawsuit was filed seven years later, on October 19, 2017. As stated by the Court in the - 10 -

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Demurrer Ruling:

As in Travis, to the extent that the first claim of facial unconstitutionality is separate from its application to any seller of real estate, it is barred by any applicable statute of limitations. Section 28.87.220 was last amended in 2010. This action was filed on October 19, 2017. A claim based upon Section 28.87.220's impropriety as enacted is well beyond the longest possible applicable statute of limitations [ under Code of Civil Procedure section 338(a)].

(Demurrer Ruling, p. 16 [RJN, Exh. 5] [citing Travis, supra, 33 Cal.App.4th 757, 774].)

In addition, these claims are also barred under the 90-day statute of limitations applicable

to the adoption of zoning ordinances under Government Code section 65009( c )(1 )(B). Although

this Court previously rejected this argument because it believed the ZIR Ordinance is not a

"zoning ordinance" (Ruling on Demurrer, p. 13 [RJN, Exh. 5]), the City respectfully disagrees

with this conclusion. While it is true that the ordinance serves the purpose of reporting

information to potential buyers, the subject of that reporting relates solely to wning and use

issues, for the purpose of ensuring compliance with, and thereby enforcing, the Zoning

Ordinance. (See SBMC §§ 28.87.220(A), (D) [listing zoning issues that are subject of physical

inspection].) Indeed, even the challenged "physical inspection" requirement serves the purpose of

inspecting the property "for compliance with the Zoning Ordinance." (Id. at§ 28.87.220(D)(7).)

Because a city's power to zone includes the power to enforce its zoning (64 Ops. Cal. Atty. Gen.

762, [1981 WL 126811, *6]), the ZIR Ordinance should be considered a "zoning ordinance."

Moreover, although it is not entirely clear from the SAP, the Court read the F AP as

challenging the City's adoption of its enforcement policy on June 21, 2017. (See SAP, 11 44-50;

FAP, Exh. E (RJN, Exh. 4).) As this Court has already ruled, any such challenge is barred by the

90-day statute oflimitations under Government Code section 65009(c)(l)(E)-which applies to

actions challenging any "decision" relating to zoning-because this lawsuit was filed more than

90 days after adoption of the policy. (Demurrer Ruling, p. 17 [RJN, Exh. 5].) The Court held:

As a challenge to City's enforcement policy, the challenge is untimely under Government Code section 65009, subdivision (c)(l)(E) because the decision was made and communicated to petitioners as of June 21, 2017. (FAP, exhibit E.) Under the reasoning of Travis, the 90-day period would then commence and this action filed in October 201 7 is untimely as to that challenge.

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(Ibid.)

For these reasons, all attempts to challenge the ordinance on its face must be rejected as

untimely under the above-cited limitations periods.

D. All As-Applied Challenges Based on Hart's ZIR in March of 2017 and

Inspection in April of 2017 are Barred by the 90-Day Statute of Limitations

A number of Petitioners' as-applied challenges, both under the Fourth Amendment and for

vagueness, are based on Petitioner Hart's submission of a ZIR in March of 2017, followed by the

search of Hart's residence on April 4, 2017. (SAP, ,r,r 2, 66, 80, 100, 109-118.) As already ruled

by this Court, these challenges are likewise barred by the 90-day statute of limitations set forth in

Government Code section 65009(c)(l)(E)-again, applicable to actions challenging any zoning-

related "decision"-because this lawsuit was filed in October of 2017, more than 90 days after

Hart's last interaction with the City regarding the ZIR (SAP, ,r,r 2, 30-34).

The Planning and Zoning Law establishes extremely short limitations periods for any

action or proceeding that challenges a land-use or zoning decision. (County of Sonoma v.

Superior Court (2010) 190 Cal.App.4th 1312, 1324-25.) Thus, under Government Code section

65009(c)(l)(E), a plaintiff has only 90 days to file and serve any petition or complaint challenging

any "decisions" "on the matters listed in [Government Code] Sections 65901 and 65903" (i.e.,

zoning matters). This statute applies to "any and all attacks on the validity" of such decisions,

regardless of the nature of relief sought by the plaintiff. (Stockton Citizens For Sensible Planning

v. City of Stockton (2012) 210 Cal.App.4th 1484, 1491-1498 [letter by city's Planning Director

constituted decision subject to Section 65009(c)(l)(E) because it constituted an exercise of an

"other power" under 65901] Gonzalez v. Cnty. of Tulare (1998) 65 Cal.App.4th 777, 786; Hensler

v. City of Glendale (1994) 8 Cal.4th 1, 26-27.)

Based on this law, in ruling on the City's demurrer to the FAP, the Court held as follows:

Assuming for the present that reporting lack of consent constitutes improper coercion, the challenge as applied to petitioner Hart is that the decision to threaten the reporting of his lack of consent in the ZIR was in violation of law. This, too, is a decision within the scope of Government Code section 65009, subdivision (c)(l)(E). The FAP alleges the last date of Hart's interaction with City as being April 4, 2017 (FAP, ,r 2), at which time the coercive effect had been fully exercised because Hart consented to the inspection of the interior of

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his home (PAP,~ 21). This action was commenced more than 90 days after April 4, 2017, so this claim is also outside of the limitations period.

(Demurrer Ruling, p. 17 [RJN, Exh. 5].)4

Because the facts and law applicable to this claim have not changed, this Court's prior

ruling still controls, and this as-applied challenge is barred by the 90-day limitations period.

E. All As-Applied Challenges to the ZIR Ordinance Based on Hart's Current

Desire to Sell His Home are Barred as Unripe, and On the Merits

The second category of as-applied challenges made concerning Petitioner Harp are based

on the allegation that he has a "current residential property that he wishes to sell" (SAP, ~~ 2, 67,

81, 101, 109-118), thus potentially subjecting him to another application of the ZIR Ordinance.

The only substantive allegations made in support of this theory are that (1) "Hart is now in the

process of selling another single-family home owned by himself' (SAP,~ 2), and (2) that "Hart

now seeks to sell another single-family home in the City of Santa Barbara." (SAP,~ 36.)

At the outset, this theory fails on the merits for the reasons discussed at the beginning of

this brief (see Section IV.A., supra)-namely, because the City has construed the ZIR Ordinance

in a constitutional manner, as not requiring non-consensual searches of the interior ofresidential

properties. (SAP,~~ 44-50; FAP, Exh. E (RJN, Exh. 4).) Regardless, however, this theory is not

ripe/or review, for Petitioners have not alleged any actual application of the ordinance to Hart in

relation to this sale, which will not occur until he actually enters into a purchase agreement for his

home and applies for a ZIR. (SMBC § SBMC § 28.87.220(C)(l) [SAP, Exh. A].)

In Pacific Legal Foundation v. California Coastal Comm. (1982) 33 Cal.3d 158, a

challenge to Coastal Commission guidelines relating to the dedication of access easements as a

condition for receiving development approvals was deemed unripe until the commission had

imposed an actual exaction. (Id. at pp. 168, 172-173.) According to the court, "[c]oastal

landowners are not immediately faced with the dilemma of either complying with the guidelines

or risking penalties for violating them," because such penalties will not occur until they "suffer

4 As noted above, Petitioners appear to have abandoned any "coercion" theory in the SAP, including ant potential their on the F AP' s Exhibit D (an August 31, 2017 ZIR).

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the imposition of invalid dedication condition." (Id. at pp. 172-173.) Similarly, in Shelter Creek

Development Corp. v. City of Oxnard (9th Cir. 1988) 838 F.2d 375, a challenge to an ordinance

imposing restrictions on apartments converted to stock-cooperative ownership was deemed unrpie

where the plaintiff had not yet applied for conversion and it was unclear whether city would

apply ordinance to plaintiff at all. (Id. at pp. 376, 379-380.)

Because Hart has alleged nothing more than a "wish" to sell his home, Hart's claim is not

yet ripe, for there has been no new application of the ZIR Ordinance to Hart. This is particularly

problematic here, where Petitioners have expressly alleged that the City has adopted a

constitutional construction of the ZIR Ordinance that does not require an internal search. (SAP, ~~

44-50; FAP, Exh. E (RJN, Exh. 4).) In light of that admission in the SAP, there is no reason to

assume that the City will demand an unconstitutional interior inspection of Hart's property. Thus,

this new "as applied" challenge on behalf of Petitioner Hart should be rejected at this stage.5

F. All As-Applied Challenges Based on SBOAR's Alleged Payment of Taxes Fail

Because They Do Not Allege Any Actual Application of the Law to SBA OR

Finally, the SAP also purports to assert as-applied challenges to the ZIR Ordinance on

behalf of SBAOR (both under the Fourth Amendment and for vagueness) based on the allegation

that the ordinance purportedly requires SBAOR to "pay taxes to facilitate and enforce an

unconstitutional program." (SAP,~~ 68, 82, 102, 109-118.) These challenges fail for the simple

5 For these same reasons, Petitioners also do not state a valid claim for declaratory relief in their Fourth Cause of Action, which is duplicative of Petitioners' other as-applied challenges on behalf of Hart. To be entitled to declaratory relief, the plaintiff must allege an actual controversy between the parties that is ripe for review. ( Otay Land Co. v. Royal Indemnity Co. (2008) 169 Cal.App.4th 556, 562 ["The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject," but "[b ]efore a controversy is ripe for adjudication it must be definite and concrete, touching the legal relations of parties having adverse legal interests."] [internal quotations omitted]; Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 541 ["An action for declaratory relief must be based on an actual controversy with known parameters. If the parameters are as yet unknown, the controversy is not yet ripe for declaratory relief."] [internal quotations omitted].) Moreover, "courts will ... evaluate in the context of a demurrer whether the factual allegations of the complaint for declaratory relief reveal that an actual controversy exists." (Otay, supra, 169 Cal.App.4th at p. 562.) Here, not only is the alleged controversy concerning Hart's hypothetical sale not ripe, but there is no controversy at all, for Petitioners admit that the City interprets the ZIR Ordinance as not requiring an internal search of anyone's property without the owner's consent. (SAP,~~ 44-50; FAP, Exh. E [RJN, Exh. 4]); RJN, Exh. 1.)

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reason that the SAP fails to allege any actual application of the ZIR Ordinance to SBAOR.

An as-applied challenge to the constitutionality of an ordinance involves allegations that

an otherwise facially valid measure has been applied in a constitutionally impermissible manner.

(Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1984.) To plead an as-applied challenge,

Petitioners must allege specific facts to show that the City is applying, or has applied, the ZIR

Ordinance unconstitutionally. (Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 510; see Tobe,

supra, 9 Cal.4th at pp. 1084-85.) Petitioners cannot plead an as-applied challenge simply by

including the words "as applied" in the complaint, for "[t]he mere inclusion of the words 'as

applied' ... is not determinative." (County of Sonoma, supra, 190 Cal.App.4th 1312, 1326 n.11.)

Here, Petitioners have alleged no facts showing a past, present, or even threatened

application of the ZIR Ordinance as against SBOAR-that SBA OR has sold any property,

applied for a ZIR, or been forced to consent to a property inspection. All Petitioners have alleged

is that SBA OR "pays taxes" that somehow "facilitate" enforcement of the ZIR Ordinance.

Although this may be sufficient to establish the "tax payment" element of taxpayer-standing

under Code of Civil Procedure section 526a ( and noting more), to state an actual "as-applied"

claim challenging the ZIR Ordinance, SBA OR must separately show that the ordinance has been

applied to it, which it has not done in the SAP. 6

Because Petitioners have alleged no facts showing any application of the ZIR Ordinance

as against SBA OR, any and all as-applied challenges on behalf of SBA OR must fail.

V. CONCLUSION

The City respectfully requests that its demurrer to the S

Dated: July 18, 2018 SORENSEN,LLP

By: --:--r-_CTt-_,......-Jf-----------Th m own Mark J. ~ stin Nicholas J. Muscolino Attorneys for Respondents/Defendants CITY OF SANTA BARBARA; MEMBERS OF THE SANTA BARBARA CITY COUNCIL

6 Of course, nothing in the ZIR Ordinance actually requires SBA OR or anyone else to "pay taxes," meaning that allegation alone does not allege any application of the ordinance to SBAOR.

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