2

Filed 12/15/22 Roth v. City of Hermosa Beach CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MARK ROTH,

Cross-complainant and 

Appellant,

v.

CITY OF HERMOSA BEACH et al.,

Cross-defendants and 

Respondents. 

B309941

(Los Angeles County

Super. Ct. No. YC072628)

APPEAL from judgments of the Superior Court of Los 

Angeles County, Deirdre H. Hill, Judge. Affirmed.

Alda J. Shelton for Cross-complainant and Appellant

Best Best & Krieger, Michael Jenkins and Gregg W. 

Kettles for Cross-defendant and Respondent City of Hermosa 

Beach.

Phillips, Spallas & Angstadt, Michael R. Halvorsen and

Sandra L. Block for Cross-defendants and Respondents Kihn 

Luan Tran and Van Hong Tran, as Trustees, etc.

_________________________
3

FACTUAL AND PROCEDURAL BACKGROUND

This is the second appeal in this matter. (See 710 and 

712 Ardmore, LLC v. Roth (Nov. 7, 2019, B293766) [non-pub.].) 

We include relevant information from our prior opinion.

A. Events Leading to Civil Lawsuit

710 and 712 Ardmore, LLC (Ardmore) owned a duplex

(Property) at 710–712 Ardmore Avenue in Hermosa Beach, 

California. Patti Nernberg is Ardmore’s managing member and 

sole member. Appellant Mark Roth (Roth) owns the residential

property next door at 604 8th Street.

In 2015, Ardmore pursued plans to build a two-unit 

condominium and submitted an application for a conditional-use 

permit. A condominium was an allowed use, but a conditionaluse permit was required to obtain a building permit. A resolution 

of the Planning Commission of the City of Hermosa Beach 

(Planning Commission) and a public hearing were required for 

Ardmore to obtain approval of the conditional use.

On October 20, 2015, a public hearing was held on 

Ardmore’s permit application, satisfying public notice 

requirements and allowing for public comment. That same day, 

the Planning Commission issued a conditional-use permit and a 

resolution approving the specific development plan. The 

resolution provides, in part: “The development and continued use 

of the property shall be in conformance with submitted plans 

received and reviewed by the Planning Commission at its 

meeting on October 20, 2015 . . . . The Community Development 

Director may approve minor modifications that do not otherwise 

conflict with the Hermosa Beach Municipal Code or requirements 

of this approval.” (Italics added.)
4

In 2016, construction of the condominium units began. In 

2017, Ardmore completed the construction of an exterior stairway

to the second floor on the north side of the Property, right next to 

Roth’s property. Roth believed the stairway violated zoning 

ordinances and the Hermosa Beach Municipal Code1. Roth hired 

an attorney to sue either the City of Hermosa Beach (the City) or 

Ardmore.

Revised plans were submitted by Ardmore and Nernberg, 

which the City approved on November 7, 2017.

On December 26, 2017, Roth filed a claim with the City for 

damages and removal of the stairs. He also asked the City not to 

grant a certificate of occupancy for the Property. In January

2018, Roth attended two city council meetings about his claim.

The City ultimately disagreed with Roth and issued the 

certificate of occupancy to Ardmore in January 2018.

On January 2, 2018, Roth placed a sign viewable by a 

person standing on the landing of the Property stairs. The sign 

stated: “I have filed a complaint with the city to demolish the 

stairs at 712 Ardmore as an illegal intrusion into the required 

rear yard. If the city does not order them removed, I will sue the 

city and the property owner.”

B. Ardmore’s Complaint and Amended Complaint

On January 19, 2018, Ardmore filed a civil action against 

Roth. In the operative first amended complaint (FAC) filed April 

2, 2018, Ardmore alleged three causes of actions: 1) intentional 

interference with prospective economic advantage; 2) preliminary 

1 Further undesignated statutory references are to the 

Hermosa Beach Municipal Code, unless otherwise stated.
5

and permanent injunction and damages; and 3) nuisance. The 

FAC alleged Roth interfered with Ardmore’s efforts to sell the 

Property’s two units by posting the sign to discourage buyers.

On February 22, 2018, Roth replaced the first sign with a 

second sign which stated: “The owner of 712 Ardmore has sued 

me in Torrance Superior Court Case number YC072628, to have 

the court rule whether the exterior stairs to 2nd floor of 712 

Ardmore are illegal. If the owner loses the case, the stairs will 

have to be torn down and the door sealed off. Have you been 

informed of the lawsuit and any consequences to you including 

becoming part of this lawsuit?”

On March 9, 2018, the City denied Roth’s claim.

On June 6, 2018, Kihn Luan Tran and Von Hong Tran—as 

trustees of the Tran Family Trust—purchased one of the 

condominium units at the Property, 712 Ardmore. We 

collectively refer to the new owners of 712 Ardmore as the Tran 

family or the Trans.

C. Roth’s Amended Cross Complaint

On September 6, 2018, Roth filed a cross complaint against 

Ardmore, the City, and the Tran family. On June 23, 2020, Roth 

filed the operative first amended cross complaint (FACC). Roth 

alleged three causes of action in his FACC: 1) mandamus against 

the City; 2) public nuisance against the City, the Trans, Ardmore, 

and newly named cross-defendant Nernberg; and 3) damages for 

removal of survey markers against Ardmore and Nernberg.

We recite the allegations relevant only to the mandamus

and public nuisance claims before us on appeal.

1. Mandamus Against the City

Roth alleged the recently built stair structure next to the 

property line between his lot and 710–712 Ardmore did not 
6

comply with provisions of the conditional-use permit and 

development plans approved by the City in 2015 and also violated 

the City’s zoning rules on setbacks, lot coverage, and height. 

Roth sought a writ of mandate to compel the City “to perform its 

ministerial duty to cause the [Property] to comply with the 

conditions approved in the grant of the Conditional-Use Permit 

and the zoning ordinance, by ordering the removal of the stair 

structure and wall and enforcing its order.”2

Roth alleged the approved plans show the proposed grade

elevation of dirt at the base of the first floor and the base of the 

second floor to be the same; he alleged this “means that anyone 

stepping out of the door and onto the landing will be stepping 

onto ‘grade,’ i.e., dirt, not onto any stair structure.” This plan 

required “hauling and compacting” of “a large amount of new dirt 

to provide the approximately 8’5.5”-high ‘Proposed Grade’ at the 

second floor door.” Sloping dirt would have to be placed “and 

compacted under the steps going down to the first floor ground 

level . . . to make the steps always be resting on grade.” Instead, 

the builders built an “unapproved stair structure” with numerous 

2 Title 17 of the Hermosa Beach Municipal Code (sections 

17.02.010 through 17.74.120) “shall be known as the zoning 

ordinance.” (§ 17.02.020.) The purpose of Title 17 provisions is 

expressly provided: “A precise land use plan for the city is 

adopted and established to serve the public health, safety and 

general welfare and to provide the economic and social 

advantages resulting from an orderly planned use of land 

resources.” (§ 17.02.010.) “In interpreting and applying the 

provisions of this title, they shall be held to be the minimum 

requirement for the promotion of the public health, safety, 

comfort, convenience and general welfare.” (§ 17.02.030.)
7

steps to a landing in front of the door on the second floor. The 

landing “must be reached by a sloping ramp, since no steps are 

shown.”

In addition, the void beneath the stairs and landing was 

filled with wood framing and foam rather than dirt. The 

conditional-use permit did not permit “room under the stairs or a 

foam-filled room in the rear-yard setback area. . . . There should 

have been dirt instead of a room of any kind, pursuant to the 

grant[ed] . . . Conditional-Use Permit 15-10.”

Roth also alleged the landing and its supporting left wall 

“went to within 3 [inches] of the property line,” violating the fivefeet rear yard setback requirement. Section 17.12.020D required 

every lot to have “a rear yard not less than five (5) feet in depth. 

The second floor can be three (3) feet from the property line.” The 

staff report also provided that the rear yard setback requirement 

was five feet at the first floor and 3 feet at the second floor. The 

unobstructed rear yard of 712 Ardmore was only three inches 

wide at the first and second floor.

Roth next alleged the placement of a perimeter wall of 12 

feet one and one-half inches as part of the unapproved stair 

structure violated the rear-yard maximum perimeter wall height 

of six feet set forth in the staff report. He referred to section 

17.46.130, which provides that a wall or fence “not more than six 

feet in height may be located anywhere on the lot.”

Roth then cited section 17.12.060, which provides that all 

buildings, including accessory structures, shall not cover more 

than 65 percent of the area of the lot. The Planning 

Commission’s staff report provides the maximum lot coverage at 

65 percent and that the plans submitted by Ardmore showed the 

project was at 64.9 percent. He alleged the calculation for the 
8

building square footage failed to include the lot coverage 

resulting from the stair structure. The stair structure caused the 

condominium project to exceed the permitted maximum of 

65 percent lot coverage.

Roth alleged the City “has not ordered the violating 

elements removed,” and instead, issued a certificate of occupancy 

and approved the structure “despite the non-compliance.” “The 

dirt/grade levels, stair structure [and its] perimeter wall, and 

guard-rail elements that were approved in the Revised Plans 

were inconsistent with, and not approved, in the Conditional-Use 

Permit.” These were “not minor modifications” of the approved 

plan. Roth asked the trial court to order the City to remove the 

stair structure and wall and to enforce its removal order. 

“Compelling removal of the foregoing violations . . . was a 

ministerial act of the City. It had no discretion to allow the rearyard violations of the project as-built . . . to continue.”

2. Public Nuisance Against the Trans

3

Roth’s cause of action for public nuisance was alleged on 

two theories—general theory of public nuisance and public 

nuisance per se.

The FACC alleged: The “violations of the Conditional-Use

Permit and the zoning ordinance constitute a public nuisance.” 

The City authorized and approved “the construction that violated 

the Conditional-Use Permit” and “continued a condition that is 

an obstruction to the free use of property so as to interfere with 

the comfortable enjoyment of life or property.” This condition 

3 The public nuisance claim incorporated by reference the 

permit violations in the mandamus cause of action.
9

“affects a substantial number of people at the same time and is a 

public nuisance.”

The FACC further alleged: The “condition is also a per se

public nuisance under . . . section 17.02.030, since the public 

health, safety, comfort, and general welfare have been violated.” 

Roth suffered a “special injury to himself that is different from 

the harm suffered by the general public.” For instance, the 

“required separation of his property from the Ardmore lot does 

not exist.” Roth’s bedroom window is five feet six inches away 

from the stairway used by the residents and guests of 712 

Ardmore to reach the second-floor entrance of the condominium. 

“People can make noise at all hours on the stairs. . . . They can 

loom over [his space] on the landing and look directly into his 

yard . . . . They can hear what he says, see what he is doing, and 

take pictures of him. There is no privacy.” “The seriousness of 

the harm outweighs the social utility of the conduct.” The City 

“approved the public nuisance instead of ordering it abated, 

which it had a ministerial duty to do.”

While Ardmore and Nernberg created the public nuisance, 

the Tran family “are continuing it.” Roth sought damages for 

“$100 a day for every day in which the violations continue until 

removed, due to inconvenience and lack of privacy.” If an 

injunction requiring the removal of the stair structure and 

supporting wall is not granted, Roth will “continue to suffer loss 

of use and enjoyment of his property.”

Roth included as exhibits to the FACC: the Planning 

Commission’s October 20, 2015 resolution approving the permit;

the condominium development plans approved via the resolution;

the Planning Commission’s staff report; photos of the stair 
10

structure and guard rail; the November 7, 2017 revised plans;

and Roth’s December 26, 2017 claim against the City.

D. Proceedings in the Trial Court 

The City and the Trans filed demurrers to the causes of 

action for mandamus and public nuisance, which Roth opposed. 

The demurrers were set to be heard on October 20, 2020.

On October 13, 2020, Roth filed an ex parte application to 

continue the October 20, 2020 hearing on the demurrers to 

November 17, 2020—the reserved hearing date on Roth’s not-yetfiled motion for sanctions against the City and its counsel under

Code of Civil Procedure section 128.7 for advancing a 

“misrepresentation to the court and waste its time on theories 

that are false.”

4 Roth explained that after filing his opposition to 

the demurrers, he received on August 31, 2020 “interrogatory 

responses verified by the City’s Code Enforcement Official who 

admitted that the stairs were not approved in 2015” and that the 

“changes that it approved in 2017 [were] ‘minor modifications.’ ” 

Roth included a copy of the interrogatory responses as an exhibit 

to his motion for sanctions. Roth argued his motion for sanctions 

“may affect the demurrers” because it showed the City’s “entire 

theory of the demurrer is false.” Roth contended the requested 

continuance “would save judicial resources [as] the demurrer and 

the [Code of Civil Procedure section] 128.7 motion [would be] 

heard at the same time.”

4 On September 25, 2020, Roth served his motion for 

sanctions on the City. Due to Code of Civil Procedure section

128.7’s 21-day safe harbor provision, Roth could not file the 

motion until October 21, 2020.
11

The City’s response to Roth’s special interrogatories set no. 

one were verified by Robert J. Rollins who stated: “The 

conceptual project plans . . . approved by City Planning 

Commission Resolution No. 15-27 show at 712 Ardmore a rear 

yard, with the stairs, landing, and wall at the property line.” The 

conceptual plans show “the area where the stairs are located as 

not being a structure and instead being conceptually shown as a

stairs and a walkway on a finish grade.” “The project, including 

the stair steps and landing at the entry to the dwelling, were 

built pursuant to plans approved by the City.”

Rollins stated: “During the course of constructing this 

project, the builder proceeded to build the landing and stepping 

feature as a wood framed structure . . . rather than following the 

construction method for the landing and steps as shown on the 

plans. When brought to the City Building Official’s attention

. . . , it was determined the use of wood structure to frame the 

landing and stepping feature . . . was not acceptable both from a 

Building and Zoning Code perspective.” Thus, the City “required 

the builder to make the outside wall of the wood structure fire 

rated so it would comply with the Building Code.” The builder 

was requested to revise the plans to reflect the change. The 

builder “proposed to fill the void with an industrial foam product 

rather than dirt. This was a practical consideration . . . as the 

industrial foam product proposed would be . . . resistant to fire 

and insects.” The City directed that the void be filled “with as 

much foam as could be pumped into it, which may be as much as 

85-90% of the void.”

Rollins further stated: The City “approved this approach as 

a resolution to the problem and the builder implemented it as 

revised. The changes to the original plans amounted to a minor 
12

modification of them. The outcome in terms of the physical 

presence is the same as if it were steps and landing on the 

ground as contemplated by the initial approval. This mid-course 

correction, given the circumstances, was a reasonable and fair 

solution for this project to proceed to completion. The stair steps 

and landing at the entry to the dwelling were built on a 

framework that is the equivalent of finish grade.”

The City, the Trans, and Ardmore each opposed Roth’s ex 

parte request for a continuance of the hearing on the demurrers. 

On October 15, 2020, the court “review[ed] the ex parte 

application and opposition in chambers and off the record,” and

denied the request to continue the hearing on the demurrers.

The court then sustained both demurrers without leave to 

amend. On November 12, 2020, the court entered an order of 

dismissal of the FACC against the Tran family. On November 

16, 2020, the court entered a judgment of dismissal as to the City.

Roth timely appealed.

DISCUSSION5

Roth argues three points on appeal. First, he argues the 

trial erred in sustaining the City’s demurrer to the cause of 

action for mandamus without leave to amend. Second, he argues

the trial court erred in sustaining the Trans’ demurrer to the 

5 On June 9, 2022, the City filed a request for judicial notice. 

The two pleadings attached to the request for judicial notice were 

already filed in the trial court and part of the record on appeal. 

However, as “the copy quality [of the two documents] is low,” the 

City included a more legible copy. We grant the request. (Cal. 

Rules of Court, rule 8.252; Evid. Code §§ 452, subd. (d), and 459.)
13

public nuisance cause of action without leave to amend. Third, 

Roth argues the trial court erred in denying his ex parte 

application to continue the October 20, 2020 hearing on the 

demurrers.

A. The Trial Court Properly Sustained the Demurrer Without 

Leave to Amend as to the Mandamus Cause of Action.

Roth argues the court erred in finding Roth did not 

sufficiently plead a cause of action for mandamus. Roth further 

argues the claim is not moot and not barred by the failure to 

exhaust administrative remedies. Roth finally argues he can 

amend the cross-complaint to allege that the City’s exercise of 

discretion was unlawful.

1. Standard of Review

A demurrer tests the legal sufficiency of the challenged 

pleading. (Milligan v. Golden Gate Bridge Highway & 

Transportation Dist. (2004) 120 Cal.App.4th 1, 5.) We review de 

novo a trial court’s ruling on a demurrer. (Dudek v. Dudek (2019) 

34 Cal.App.5th 154, 163 (Dudek).) When a demurrer is 

sustained, we determine whether the complaint states facts 

sufficient to constitute a cause of action. (Blank v. Kirwan (1985) 

39 Cal.3d 311, 318 (Blank); Beason v. Griff (1954) 127 Cal.App.2d 

382, 386–387.) The judgment of dismissal after a sustained 

demurrer must be affirmed if the challenged pleading fails to 

plead an essential element or the allegations disclose some 

defense or bar to recovery. (Brown v. Crandall (2011) 

198 Cal.App.4th 1, 8.) We are to affirm if any of the grounds for 

demurrer raised by the defendant is well taken and disposes of 

the cross-complaint. (Aubry v. Tri-City Hospital Dist. (1992) 

2 Cal.4th 962, 967.)
14

We accept as true all material facts properly pleaded in the 

cross-complaint, but do not assume the truth of contentions, 

deductions, or conclusions of fact and law. (Dudek, supra, 

34 Cal.App.5th at p. 163; Estate of Holdaway (2019) 

40 Cal.App.5th 1049, 1052.) “We give the complaint a reasonable 

interpretation and treat the demurrer as admitting all material 

facts properly pleaded that are not inconsistent with other 

allegations, exhibits, or judicially noticed facts.” (Morris v. 

JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.) 

The allegations that we accept as true necessarily include the 

contents of any exhibits attached to the complaint, and in the 

event of a conflict between the pleading and an exhibit, the facts 

contained in the exhibit take precedence over and supersede any 

inconsistent or contrary allegations in the pleading. (Jibilian v. 

Franchise Tax Bd. (2006) 136 Cal.App.4th 862, 864, fn. 1; 

Building Permit Consultants, Inc. v. Mazur (2004) 

122 Cal.App.4th 1400, 1409; see Schmier v. City of Berkeley

(2022) 76 Cal.App.5th 549, 553, fn. 4.)

In addition, “ ‘[w]hen a demurrer is sustained without leave 

to amend, “we decide whether there is a reasonable possibility 

that the defect can be cured by amendment: if it can be, the trial 

court has abused its discretion and we reverse; if not, there has 

been no abuse of discretion and we affirm.” ’ ” (Dudek, supra,

34 Cal.App.5th at p. 163.) Here, Roth shoulders the burden to 

show a reasonable possibility the operative complaint can be 

amended to state a cause of action. (Id. at pp. 163–164; 

Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 902). 

Roth can make this showing in the first instance to the appellate 

court. (Roman v. County of Los Angeles (2000) 85 Cal.App.4th

316, 322.)
15

2. Applicable Law

Code of Civil Procedure section 1085, subdivision (a) 

provides: “A writ of mandate may be issued by any court to any 

inferior tribunal, corporation, board, or person, to compel the 

performance of an act which the law specially enjoins, as a duty 

resulting from an office, trust, or station.” A writ of mandate 

“ ‘will issue against a county, city, or other public body.’ ” (Venice 

Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 

1547, 1558.)

Three basic requirements are essential to the issuance of 

the writ: 1) A clear, present and usually ministerial duty upon 

the part of the respondent (here, the City); 2) a clear, present and 

beneficial right in the petitioner (here, Roth) to the performance 

of that duty; and 3) the absence of any other plain, speedy, and 

adequate remedy. (Monterey Coastkeeper v. Central Coast 

Regional Water Quality Control Board (2022) 76 Cal.App.5th 

1, 18; County of San Diego v. State of California (2008)

164 Cal.App.4th 580, 593 (County of San Diego).)

As to the first requirement, it is settled that traditional 

mandamus only lies to compel the performance of a clear, present 

ministerial duty. (Sierra Club v. Department of Parks & 

Recreation (2012) 202 Cal.App.4th 735, 740; State of California v. 

Superior Court (1974) 12 Cal.3d 237, 247.) “A ministerial act is 

an act that a public officer is required to perform in a prescribed 

manner in obedience to the mandate of legal authority and 

without regard to his [or her] own judgment or opinion 

concerning such act’s propriety or impropriety, when a given 

state of facts exists. Discretion . . . is the power conferred on 

public functionaries to act officially according to the dictates of 

their own judgment.” (Rodriguez v. Solis (1991) 1 Cal.App.4th 
16

495, 501–502; AIDS Healthcare Foundation v. Los Angeles 

County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700

(AIDS Healthcare).) “Mandamus cannot be used to compel the 

exercise of discretion in a particular manner or to order a specific 

result when the underlying decision is purely discretionary.” (US 

Ecology, Inc. v. State of California (2001) 92 Cal.App.4th 113, 

138; see AIDS Healthcare, at pp. 701–702 [“Mandamus does not 

lie to compel a public agency to exercise discretionary powers in a 

particular manner, only to compel it to exercise its discretion in 

some manner”].)

As to the second requirement, as a general rule, a party 

must be “beneficially interested” to seek a writ of mandate. 

(Code Civ. Proc., § 1086.) The requirement that the party be 

beneficially interested has been generally interpreted to mean 

that one may obtain the writ only if the person has some “ ‘special 

interest to be served or some particular right to be preserved or 

protected over and above the interest held in common with the 

public at large. . . .’ [Citation.] The beneficial interest must be 

direct and substantial.” (Save the Plastic Bag Coalition v. City of 

Manhattan Beach (2011) 52 Cal.4th 155, 165; see Citizens for 

Amending Proposition L v. City of Pomona (2018) 28 Cal.App.5th 

1159, 1173 (Citizens for Amending).) This standard is equivalent 

to the federal injury-in-fact test, which requires a party to prove 

by a preponderance of the evidence that it has suffered an 

invasion of a legally protected interest that is (a) concrete and 

particularized, and (b) actual or imminent, not conjectural or 

hypothetical. (Citizens for Amending, at p. 1173; Associated 

Builders and Contractors, Inc. v. San Francisco Airports Com.

(1999) 21 Cal.4th 352, 362.)
17

As to the third requirement, as a general rule, a writ “must 

be issued in all cases where there is not a plain, speedy, and 

adequate remedy, in the ordinary course of law.” (Code Civ. 

Proc., § 1086.) Where the petitioner is pursuing traditional 

mandamus, the “ ‘exhaustion requirement speaks to whether 

there exists an adequate legal remedy. If an administrative 

remedy is available and has not yet been exhausted, an adequate 

remedy exists and the petitioner is not entitled to extraordinary 

relief.’ ” (Eight Unnamed Physicians v. Medical Executive Com.

(2007) 150 Cal.App.4th 503, 511.)

3. Analysis

We review the FACC to ascertain whether it states facts 

sufficient to constitute a cause of action for mandamus relief.

First, we must determine if the FACC adequately alleged 

that the City has a clear, ministerial duty imposed by law.

The FACC alleged the stair structure violates height, 

setback, and lot coverage requirements of the conditional-use 

permit and the Hermosa Beach Municipal Code/zoning ordinance, 

as interpreted by Roth. Roth sought a writ of mandate “to compel 

the City of Hermosa Beach to perform its ministerial duty to 

cause the [Property] to comply with the conditions approved in 

the grant of the Conditional-Use Permit and the zoning 

ordinance, by ordering the removal of the stair structure and wall 

and enforcing its order.” “Compelling removal of the foregoing 

violations . . . was a ministerial act of the City. It had no 

discretion to allow the rear-yard violations of the project as-built 

in late November, 2017 or early December, 2017, to continue.”

Roth argues disapproving the stairway was a ministerial 

act; “a mere nondiscretionary operational decision implementing 

a policy decision.” He cites Rutgard v. City of Los Angeles (2020) 
18

52 Cal.App.5th 815, which provides, “ ‘A ministerial duty is an 

obligation to perform a specific act in a manner prescribed by law 

whenever a given state of facts exists, without regard to any 

personal judgment as to the propriety of the act.’ ” (Id. at p. 824.) 

Roth argues, “No personal judgment was involved. A given state 

of facts existed—clear non-compliance—triggering a ministerial 

duty to disapprove.” The City had a ministerial duty to make “a 

mere operational decision and withhold approval of the stairs.”

The City argues, however, that it may not be enjoined to 

enforce the law in any particular way. “With a number of options 

available to achieve code compliance, however, even assuming 

the wall, stairway, and landing conflicted with the City’s 

[M]unicipal [C]ode, the City does not have a duty to pursue any 

one enforcement option in particular and cannot be ordered to do 

so.” In support of its position, the City cites Riggs v. City of 

Oxnard (1984) 154 Cal.App.3d 526 (Riggs). The Court of Appeal 

in Riggs considered appellant’s claim that a “zoning violation

imposes a duty upon the respondent [City of Oxnard] to issue a 

criminal citation and enjoin the continued use of the property.” 

(Id. at p. 530.) The Riggs court rejected this claim, noting that 

the relevant zoning ordinance’s use of the term “may” indicated 

that prosecutorial enforcement was discretionary rather than 

mandatory. (Ibid.)

Similarly, in this case, the Hermosa Beach Municipal Code 

provides the City with a variety of options for addressing the 

allegedly non-compliant stair structure and wall. Section

17.74.010 specifies that violations of title 17 are “subject to the 

administrative penalty provisions of Chapter 1.10,” i.e., the use of 

administrative citations and penalties; however, administrative 

citations/penalties “shall not prevent the use of other methods of 
19

enforcement or abatement as provided by this Code, including 

but not limited to criminal and civil actions.” (§ 1.10.010.) 

Section 17.74.020 provides that each person/corporation “found 

guilty of a violation shall be deemed guilty of a separate offense 

for every day during any portion of which any violation of any 

provision of this title is committed, continued or permitted by 

such person[/corporation].” A violation of conditions set forth in a 

conditional-use permit and development plans are also subject to 

the measures set out in section 17.70.010, which allows for the 

revocation or modification of permits. (§ 17.74.030.) 

Section 17.74.040 provides that the first violation is punishable 

by a fine of $50; a $100 fine for a second violation of the same 

condition within one year; a $150 fine for a third violation within 

one year; and a $300 fine for each additional violation of the same 

condition within one year; it is “a separate offense for each and 

every day during any portion of which any violation is committed, 

continued or permitted by such person and shall be punishable 

accordingly.” (§ 17.74.040.)

Roth argues the City had no choice but to order the stair 

structure removed. He cites to section 1.10.050A, which provides: 

“Payment of a fine shall not excuse or discharge a failure to 

correct continuing violations nor shall it bar further enforcement 

action by the City.” We agree with the City that this “means that 

payment of a fine will not prevent the City from imposing 

additional fines for continuing violations.” We also find “further 

enforcement action by the City” means the City may invoke any 

other option available to it in the Hermosa Beach Municipal 

Code.

Roth contends “although [the] City can certainly issue daily 

administrative fines, in addition it must order removal of a non-
20

compliant structure that violates the minimum requirements of 

the Zoning Code.” There is no section in the Hermosa Beach 

Municipal Code that expressly compels the City to exercise its 

discretion in any one particular manner, namely, to order the 

removal of the stair structure, as opposed to levying fines ranging 

from $50 to $300 for each violation of the same condition (per 

§ 17.74.040), or subjecting the person/corporation to 

administrative citations and penalties or “other methods of 

enforcement or abatement as provided by the Code, including but 

not limited to criminal and civil actions” (per §§ 1.10.010, 

17.74.010) or modification and/or revocation of permit (per 

§§ 17.70.010, 17.74.030). “Mandate will not issue to compel 

action unless it is shown the duty to do the thing asked for is 

plain and unmixed with discretionary power or the exercise of 

judgment.” (Unnamed Physician v. Board of Trustees (2001)

93 Cal.App.4th 607, 618; County of San Diego, supra, 164 

Cal.App.4th at p. 596.) Moreover, administrative citations “may

be in addition to any criminal, civil or other legal remedy 

established by law which may be pursued to address violations of 

the Municipal Code.” (§ 1.10.030, italics added.) Roth has not 

pleaded sufficient facts to satisfy the first requirement for this 

cause of action.

This cause of action also suffers from a second and 

irremediable defect, in that it fails to allege exhaustion of 

administrative remedies.

Exhaustion of administrative remedies “refers to the 

requirement that administrative remedies be pursued as a 

jurisdictional prerequisite to seeking judicial relief from an 

administrative action.” (California Correctional Peace Officers 

Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1148.) In 
21

general, a party must exhaust administrative remedies before 

resorting to the courts. (Branciforte Heights, LLC v. City of 

Santa Cruz (2006) 138 Cal.App.4th 914, 932.) Under this rule, 

an administrative remedy is exhausted only upon termination of 

all available, nonduplicative administrative review procedures. 

(Id. at pp. 932–933.) The exhaustion doctrine is principally 

grounded on concerns favoring administrative autonomy (i.e., 

courts should not interfere with an agency determination until 

the agency has reached a final decision) and judicial efficiency 

(i.e., overworked courts should decline to intervene in an 

administrative dispute unless absolutely necessary). (Id. at 

p. 933.)

The record demonstrates Roth did not appeal from the 

Planning Commission’s October 2015 decision granting the 

conditional-use permit, the January 2018 decision granting the 

certificate of occupancy, and the November 2017 decision 

approving the revised plans.

The FACC’s only allegation addressing this requirement is 

the conclusory statement: Roth “has no speedy or adequate 

remedy at law” and sought a writ of mandate “to compel the City 

of Hermosa Beach to . . . order[] the removal of the stair structure 

and wall and enforc[e] its order.” This is nowhere close to 

sufficient as no facts are alleged to support the conclusory 

statement. If Roth wished to appeal the Planning Commission’s 

October 2015 decision granting the conditional-use permit/plan or 

its November 2017 decision approving the revised permit/plan or 

its January 2018 decision granting the application for certificate 

of occupancy, he should have filed a written appeal with the City 

Council to review the decisions by the Planning Commission. 
22

(§§ 17.58.040, 17.56.070.) The FACC contains no allegations that 

Roth pursued these remedies.

Roth argues he “can amend his allegations that City had a 

ministerial duty to disapprove the stair structure by further 

alleging that since the modifications were not minor, the 

Planning Commission would have to hold another public hearing 

to approve them.” Roth also argues he “can amend to allege that 

Rollins did not conform to procedures required by law. He orally 

approved a major plan modification that violated the permit and 

Code, with no new approved written plans, and without seeking a 

new public hearing at the Planning Commission. Rollins 

approved the stairs [with] no formality at all. He is not the 

Community Development Director, and the permit gave him no 

authority to approve even a minor modification.”

The amendments proposed by Roth would affect the first 

requirement for mandamus relief (i.e., whether there was a 

ministerial duty or abuse of discretion). No matter what, 

however, Roth cannot plead facts showing he exhausted his 

administrative remedies. Thus, the court did not abuse its 

discretion in denying leave to amend the cause of action for 

mandamus.

B. The Trial Court Properly Sustained the Demurrer to the 

Cause of Action for Public Nuisance Per Se Without Leave 

to Amend.

Roth challenges the trial court’s order sustaining the 

demurrer to his cause of action for public nuisance per se; he 

does not raise the general public nuisance theory on appeal. We 

review the court’s ruling de novo. (Dudek, supra, 34 Cal.App.5th 

at p. 163.)
23

1. Applicable Law

Civil Code section 3479 defines a nuisance as “[a]nything 

which is injurious to health, including, but not limited to, the 

illegal sale of controlled substances, or is indecent or offensive to 

the senses, or an obstruction to the free use of property, so as to 

interfere with the comfortable enjoyment of life or property.” 

(Italics added.) A nuisance may be a public nuisance, a private 

nuisance, or both. (City of Claremont v. Kruse (2009) 

177 Cal.App.4th 1153, 1163 (Kruse).)

“[A] public nuisance is not dependent upon a disturbance of 

rights in land but upon an interference with the rights of the 

community at large.” (Venuto v. Owens–Corning Fiberglas Corp.

(1971) 22 Cal.App.3d 116, 124, italics added (Venuto).) A public 

nuisance “affects at the same time an entire community or 

neighborhood, or any considerable number of persons, although 

the extent of the annoyance or damage inflicted upon individuals 

may be unequal.” (Civ. Code, § 3480, italics added.) The 

remedies against a public nuisance are: “1. Indictment or 

information; [¶] 2. A civil action; or [¶] 3. Abatement.” (Civ. 

Code, § 3491.) “Of course, not every interference with collective 

social interests constitutes a public nuisance. To qualify, and 

thus be enjoinable [or abatable], the interference must be both 

substantial and unreasonable.” (People ex rel. Gallo v. Acuna

(1997) 14 Cal.4th 1090, 1105, some italics added (Acuna).) It is 

substantial if it causes significant harm and unreasonable if its 

social utility is outweighed by the gravity of the harm inflicted. 

(Ibid.)
24

A nuisance per se arises “ ‘when a legislative body with 

appropriate jurisdiction, in the exercise of the police power, 

expressly declares a particular object or substance, activity, or 

circumstance, to be a nuisance. . . . [T]o rephrase the rule, to be 

considered a nuisance per se the object, substance, activity or 

circumstance at issue must be expressly declared to be a 

nuisance by its very existence by some applicable law.’ ” (Kruse, 

supra, 177 Cal.App.4th at p. 1163, italics added.) Where the law 

expressly declares something to be a nuisance, then no inquiry 

beyond its existence need be made. (Id. at p. 1164.) Nuisances 

per se are so regarded because no proof is required, beyond the 

actual fact of their existence, to establish the nuisance. (Ibid.)

An action to abate a public nuisance “must be prosecuted by 

a governmental entity and may not be initiated by a private 

party unless the nuisance is personally injurious to that private 

party.” (County of Santa Clara v. Superior Court (2010) 

50 Cal.4th 35, 55, italics added (County of Santa Clara).) “A

private person may maintain an action for a public nuisance, if it 

is specially injurious to himself, but not otherwise.” (Civ. Code, 

§ 3493.) To have standing to pursue a public nuisance 

abatement action, the private party must suffer an injury that is 

“different in kind, not merely in degree, from that suffered by 

other members of the public.” (Kempton v. City of Los Angeles

(2008) 165 Cal.App.4th 1344, 1349 (Kempton).)

2. Analysis

The FACC’s public nuisance per se claim cites to sections 

17.02.010–17.02.030; these sections address the purpose of land 

use plans, the title of zoning ordinance for citation, and the 

interpretation of provisions in promoting the public health, 

safety, and general welfare.
25

Having incorporated the allegations in support of the cause 

of action for mandamus, the FACC also cites to sections 17.12.020

(setting building height cap and rear yard setback), 17.12.060

(setting permissible lot coverage percentage at no more than 

65 percent), and 17.46.130 (setting cap on wall/fence height and 

other restrictions). None of the cited statutory language specifies

that any of the alleged violations constitute a public nuisance per 

se. (See, e.g., Jones v. Union Pacific Railroad Co. (2000) 

79 Cal.App.4th 1053, 1068 [to support a claim of nuisance per se, 

plaintiffs must point to a statutory provision that declares the

alleged conduct a nuisance].)

In his opening brief, Roth cites to section 17.74.020 in 

support of his public nuisance per se claim, which provides: “Each 

person . . . found guilty of a violation shall be deemed guilty of a 

separate offense for every day during any portion of which any 

violation of any provision of this title is committed, continued or 

permitted by such person . . . and any use, occupation or building 

or structure maintained contrary to the provisions hereof shall 

constitute a public nuisance.” (§ 17.74.020, italics added.) Roth 

contends the stair structure violates the conditional-use permit 

and is thus a public nuisance per se.

The problem is that the FACC itself does not cite to section 

17.74.020 to support Roth’s claim for public nuisance per se. 

Roth in fact conceded in his August 31, 2020 opposition to the 

Trans’ demurrer that his FACC “did not cite the [relevant] 

ordinances.” To support a claim of nuisance per se, Roth must 

point to a statutory provision that expressly declares the alleged 

issue to be a nuisance. (Beck v. Development Co. v. Southern 

Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1207.) 

Roth has failed to do so in the FACC.
26

Second, Roth does not allege facts to support his right to 

abate the public nuisance in his capacity as a private party.

Section 1.04.050C, entitled “Violations Deemed To Be a 

Public Nuisance,” expressly provides: “In addition to the 

penalties . . . provided, any condition caused or permitted to exist 

in violation of any of the provisions of the Code shall be deemed a 

public nuisance and may be summarily abated as such by the 

City, and every day such condition continues shall be regarded as 

a new and separate offense.” (Italics added.)

Generally, an action to abate a public nuisance “must be 

prosecuted by a governmental entity and may not be initiated by 

a private party unless the nuisance is personally injurious to that 

private party.” (County of Santa Clara, supra, 50 Cal.4th at 

p. 55, citing Civ. Code, § 3493.) To allege standing to pursue a 

public nuisance abatement action, the private party must suffer 

an injury that is “different in kind, not merely in degree, from 

that suffered by other members of the public.” (Kempton, supra,

165 Cal.App.4th at p. 1349.) “A private person may maintain an 

action for a public nuisance, if it is specially injurious to himself, 

but not otherwise.” (Civ. Code, § 3493; see Kempton, at p. 1349.) 

Put another way, to establish standing, private plaintiffs must 

allege that both they and the public were injured, albeit in 

different ways or in different degree, by the alleged public 

nuisance.

In Kempton for instance, a fence erected upon City property 

blocked the sidewalk area in a public right-of-way and blocked

the property owners’ sightlines upon entering and exiting their 

garage along the street, “causing ‘fear of being in a vehicle 

collision, fear of hitting a pedestrian.” (Kempton, supra, 

165 Cal.App.4th at pp. 1349–1350.) The reviewing court in 
27

Kempton found the fence was a public nuisance as it affects at the 

same time an entire community or neighborhood (the fence blocks 

the sidewalk area in a public right-of-way) and also affects the 

property owners (the fence blocks their sightline when 

entering/exiting their garage). (Id. at pp. 1348–1350.) 

“Interference with the ingress and egress to and from a public 

street constitutes ‘both a private and public nuisance’ and may 

constitute a special injury actionable by an individual.” (Id. at 

p. 1349, italics added.)

In the FACC, however, Roth has not pleaded facts showing

the stair structure caused “an interference with the rights of the 

community at large” (Venuto, supra, 22 Cal.App.3d at p. 124) or

affected “at the same time an entire community or neighborhood, 

or any considerable number of persons” (Civ. Code, § 3480). (See 

Acuna, supra, 14 Cal.4th at p. 1103.) Roth merely pleaded that 

he suffered “special injury” because he lived next door to the stair 

structure that did not have the required rear yard setback from 

his neighbor’s stair structure. Without facts alleging how the 

stair structure caused any interference with the rights of the 

community or neighborhood at large and how that public injury 

compared with the harm suffered by Roth himself, Roth has 

failed to sufficiently plead he suffered “special injury” from the 

alleged nuisance.

Finally, Roth shoulders the burden to show a reasonable 

possibility the defect in the FACC can be cured by amendment; if 

it can, the trial court abused its discretion in sustaining the 

demurrer without leave to amend. (Dudek, supra,

34 Cal.App.5th at pp. 163–164.)
28

Roth has not proposed an amendment that would cure the 

defects and has not provided any argument or citation to the law 

in this regard. A party is required in his or her brief to “[s]tate 

each point under a separate heading or subheading summarizing 

the point, and support each point by argument and, if possible, by 

citation of authority.” (Cal. Rules of Court6, rule 8.204(a)(1)(B), 

italics added; see Pizarro v. Reynoso (2017) 10 Cal.App.5th 

172, 179 (Pizarro).) An appellant who does not provide adequate 

legal authority and analysis to support a contention forfeits that 

contention. (Ewald v. Nationstar Mortgage, LLC (2017) 

13 Cal.App.5th 947, 948; Nielsen v. Gibson (2009) 

178 Cal.App.4th 318, 324.) This contention is forfeited.

C. The Court Properly Denied Roth’s Ex Parte Request to 

Continue the Hearing on the Demurrers.

Roth contends the trial court erred in failing to continue 

the demurrers to the date of his sanctions motion because “that 

motion showed [the] City’s demurrer presented false arguments 

with no evidentiary support.” He argues the court “could have 

issued the [nonmonetary] sanction of not allowing [the] City to 

press a theory on demurrer which has no evidentiary support.” 

He further argues he “had that proof but was denied the ability to 

allege it or to amend to allege it,” resulting in prejudicial error.

6 All further undesignated rule references are to the 

California Rules of Court.
29

1. Standard of Review

Trial courts generally have broad discretion in deciding 

whether to grant a request for a continuance. (Freeman v. 

Sullivant (2011) 192 Cal.App.4th 523, 527.) An abuse of 

discretion results in reversal only when the denial of a 

continuance results in the denial of a fair hearing, or otherwise 

prejudices a party. (Ibid.) A reviewing court may not disturb the 

exercise of discretion by a trial court in the absence of a clear 

abuse thereof appearing in the record. (Forthmann v. Boyer

(2002) 97 Cal.App.4th 977, 984.) The burden rests on the 

complaining party to demonstrate from the record that such an 

abuse has occurred. (Id. at p. 985.)

2. Applicable Law

The right to seek ex parte relief is subject to strict 

procedural and subject matter limitations. Rule 3.1202, 

subdivision (c) provides: “An applicant must make an affirmative 

factual showing in a declaration containing competent testimony 

based on personal knowledge of irreparable harm, immediate 

danger, or any other statutory basis for granting relief ex parte.” 

(Rule 3.1202(c).)

3. Analysis

We preliminarily note Roth does not support his 

contentions as to this issue on appeal with citation to legal 

authority or case law; his opening brief does not provide any 

information as to the applicable standard of review. A party is 

required in his or her brief to “[s]tate each point under a separate 

heading or subheading summarizing the point, and support each 

point by argument and, if possible, by citation of authority.” (Rule 

8.204(a)(1)(B), italics added; see Pizarro, supra, 10 Cal.App.5th at 
30

p. 179.) A reviewing court has no obligation to “develop 

appellants’ argument for them.” (In re Marriage of Falcone & 

Fyke (2008) 164 Cal.App.4th 814, 830; see Pizarro at p. 179 [an 

appellant forfeits his argument if “he did not sufficiently apprise 

the court of what argument he was trying to make”]; see 

Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 948 [“We are 

not required to make an independent, unassisted study of the 

record in search of error [in] a trial court’s action.”].) Roth’s reply 

brief is no better, as it fails to address or mention the issue. He 

has forfeited this issue.

Alternatively, we find the sanctions motion was immaterial 

to the court’s consideration of the demurrers. A demurrer tests 

the legal sufficiency of the challenged pleading—here, Roth’s 

FACC—and Roth’s arguments about the City’s demurrer not 

“be[ing] supported by the evidence” are misplaced. An analysis of 

the City’s demurrer to the FACC does not rely on a review of the 

evidence, but rather, a review of the operative complaint or crosscomplaint to determine whether it states facts sufficient to 

constitute a cause of action. (Blank, supra, 39 Cal.3d at p. 318.)

We find no error.
31

DISPOSITION

The judgment and order are affirmed. Costs are awarded 

to respondents.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

GRIMES, J.

HARUTUNIAN, J.*

* Judge of the San Diego Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.