Filed 1 / 26 / 21 Smith v. Cit y of Santa Bar bara CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

GREG SMITH ET AL.,

P etitioner s and Appellants,

v.

CITY OF SANTA BARBARA, ET AL

.,
Respondents ;

HERBERT BARTHELS ET AL.,

Real Parties in Interest. 2d Civil No. B3 01299 (Super. Ct. No. 18CV01590 ) (Santa Barbara County)

Real Parties in Interest Herbert Barthels and the Herbert E. Barthels Trust ( Barthels) bought the last undeveloped oceanfront lot in Santa Barbara (City) in 1976

. Barthels’ s plans
to build a house stalled in 1989 when the City determined he lacked legal access to the property. The City recently changed its position and revived Barthels’ s plans. Neighbors and appellants2

Greg and Judith Smith (the Smiths) oppose d development and sought a traditional writ of mandate challenging the City ’s access determination. The trial court denied the ir petition

. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Mesa neighborhood overlooks the Pacific Ocean from
the bluffs above Santa Barbara H arbor. Barthel’s lot sits on the waterfront near the Mesa’s centerline, just a few hundred feet
from the city’s historic lighthouse. One accesses the lot by taking
El Camino de la Luz to its eastern cul

- de

- sac terminus, entering a driveway, then following a narrow private road t hat bends
southward toward the ocean

. At the end is 1837 1⁄2 El Camino de
la Luz. The Smiths own the oceanfront house just west of
Ba rthels ’ s lot at 1839 El Camino de la Luz. The late Gertrude Eaton created 1837 1⁄2 by splitting off
1837’s southern half in 1958 . Eaton’s neighbors, including the former owner of the Smith’s property, sent letters to the P lanning
C ommission supporting her split request. Minutes from the commission hearings , however, re flect concerns among its
members about the private road’s width and service capacity

. The Commission recommended the C ity C ouncil deny the request. Eaton appeared personally at the next council meeting and explained why she believed the existing 15

- foot easement would provide adequate access. The council granted her request despite the commission ’s denial recommendation , noting “that
several of the n eighbors wrote letters

. . . urging approval of the requested division of property, and the granting of a variance in
this case.” Eaton eventually sold 1837 1⁄2. Barthels bought the undeveloped lot in 1976

. Barthels first applied for a development permi t in 1989

. Neighbors objected on the grounds his project would further3

burden the already strained private road

. He learned during this

process that portions of his easement measured only 7.5 feet
wide

. When t he C ity refused to issue a building permit

, Barthels sued his title insurer for negligence and obtained a damages award of $31,524 plus the lot’s purchase price adjusted for
inflation. 1 Barthels continued his development efforts after obtaining
the damages award. He secur ed a water meter and worked with the fire department to resolve safety issues . The easement, however, remained the project’s Achilles heel. A letter from the City Attorney’s office in 1997 concluded that “ the required legal access to the parcel is not clea rly and definitely established from a legal standpoint.” The City reiterated its refus al to proce ss his development application because the lot “[did] not appear to satisfy a fundamental condition of its original creation, the
existence of the 15 foot wid e access easement for the full length necessary for vehicular access from the public street to the parcel.” Barthels requested a condition al certificate of compliance stating exactly what was required to make his lot legal . The City issued a certificate in 1999 stating he would need to “provide evidence, satisfactory to the City Engineer that the

owner

. . . substantially possesses the required amount of legal access that formed the basis of the originally approved lot split.”
Barthels fil ed a second de velopment application in 2002

. N eighbors again voiced their belief that the existing easement would not support an additional home. They also accused the
late Eaton of misrepresent ing the easement’s width when she

1 We affirmed the superior court’s calculation of Barthel s ’s damages in Barthels v. Santa Barbara Title Co. (1994) 28 Cal.App.4th 674. The appeal did not address the substance of Barthel s ’s negligence claims

.4

addressed the City Council i n 1958

– an act they alleged would invalidate the lot split. These objections led Barthels to sue the owners of the lots served by the private road as a way to p erfect
his access rights

. 2 They settled the case after reaching an agreement about the easement ’s precise boundaries: 15 feet wide along its northern half ; 7.5 feet wide at a “pinch point” in the middle; and 10 feet wide along the southern half leading to
Barthel s ’s lot. The court entered a stipulated j udgment to this
effect in 2009

. Barthels continued work ing through the environmental review process. The Smiths began resisting the lot’s development immediately after buying their house in 2010. Trenching performed at the behest of the project’s geote chnical engineers prompted the Smiths to file a complaint for injunctive relief in
2012

. 3 The case lasted two years. When work resumed , the
Smiths submitt ed formal comments to the Planning Commission reiterating their concerns about access, the lot’s legal ity , and impacts to nearby Lighthouse C reek. The y appeared at P lanning
C ommission hearings and submitted a lengthy report from a land use expert opining that Barthels did not and could not s atisfy

sp ecific conditions set forth in the City ’s 1999 conditional certificate of compliance. City Engineer Brian D’Amour decided Barthels satisfied
the conditions . D’Amour explained his findings in a memorandum to the Planning Commission in February of 2018

. He concluded Barthels now “ ‘ substantially possesse[d] the

2 Barthels v. Franco, et al. (Super. Ct. Santa Barbara County, 2008, No. 1268293 )

.

3 Smith v. Barthels, et al. (Super. Ct. Santa Barbara County, 2012 , No. 1414447).5

required amount of legal access that formed the basis of the originally approved lot split. ’ ” D’Amour noted the easement
boundaries established by Barthels and his neighbors in 2009
matched those reflected in the lot split map submitted by Eaton when she applied for split in 1958. His memorandum cited several exhibits, including the certificate, records from the 1958 lot split proceedings, the City Attorney’s 1997 letter, and the 2009 stipu lated judgment.
The Smiths challenged D’Amour’s determination by petition ing for a traditional writ of mandamus. The y contended
D’Amour erred by disregarding key evidence and assuming the accuracy of Eaton’s lot split map. In addition, t hey requested a finding that Barthels’ s representations in his title insurance case about his lack of legal access estopped him from later asserting those rights

. The trial court denied the petition and entered judgment against the Smiths.
DISCUSSION
A. D’Amour’s Discr etionary Access Determination Is Not Subject

to Traditional Writ Review

“ A writ of mandate may be issued by any court

. . . to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station .” (Code Civ. Proc., § 1085 , subd. (a).) “Generally, mandamus is available to compel a public agency ’ s performance or to correct an agency ’ s abuse of discretion when the action being compelled or corrected
is ministerial. ” (

AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700, citing Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 501.) A

“ ‘ ministerial act ’ ” is one in which “ ‘ a public officer is required to perform in a prescribed manner in ob edience to the mandate of legal authority and without regard to his [or her] own judgment6

or opinion concerning such act's propriety or impropriety, when a given state of facts exists. ’ ” ( I bi d

. , citing Rodriguez at pp. 501

- 502.) “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.” ( Id

. at pp.
700

- 701. ) We categorize D’Amour’s access determination as a discretionary act performed in connectio n, and in compliance, with the City’s authority under the Subdivision Map Act (Act) to impose conditions on the development of local subdivisions. (See
AIDS Healthcare Foundation v. Los Angeles County Dept. of
Public Health

, supra , 197 Cal .App.4th at p. 701 [whether duty imposed by statute is ministerial or discretionary “ is a question of statutory interpretation”].) The Act vests local agencies with authority to determine whethe r real property complies with the Act’s provisions and land use ordinances. (Gov. Code, § 66499.35
, subd. (a); see Save Mount Diablo v. Contra Costa County (2015) 240 Cal.App.4th 1368, 1377 [“The Act ‘ grants to local governments the power to regulate the manner in which their communities grow ’ ”].) Issuing a conditional certificate of compliance notifies the owners of a non

- compliant property how they can bring the property into compliance and thereby seek the permits or other grants required to begin deve lopment. (Gov. Code, § 66499.35, subd. (b).) The City issued Barthels a conditional certificate of compliance in 1999. The certificate identifie s the C ity E ngineer as the official responsible for deciding whether 1837 1⁄2 “possessed the amount of require d legal access that formed the basis of the City’s approval of the lot split in 1958 .” The Smiths do not allege D’Amour declined to exercise his discretion or failed to perform a ministerial dut y

. They allege he exercised his discretion7

incorrectly by, for example, relying on the lot split map and disregard ing Eaton’s alleged lie s to council members in 1958.
The se allegations only highlight how D’Amour’s determination

was a product of his judgment as City Engineer and not his

“ obedience to the mandate of legal authority

. ” As such, it lies outside the purview of traditional mandate under Code Civ. Proc., section 1 0 85.
B

. The Trial Court’s Denial of the Petition Wa s Supported by

Substantial Evidence
Th ough the trial court need not have considered the petition on its merits , it ruled correctly when it did so

. “ ‘ In reviewing a trial court ’ s judgment on a petition for writ of ordinary mandate, we apply the substantial evidence test to the
trial court ’ s factual fi ndings. ’ ” ( Klajic v. Castaic Lake Water Agency (2001) 90 Cal.App.4th 987, 995

- 996, citing Kreeft v. City of
Oakland ( 1998 ) 68 Cal.App.4th 46
, 53.) “ Thus, foundational matters of fact are conclusive on appeal if supported by
substantial evidence. ” ( Klaji c , at p. 996, citing Clark v. City of
Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169

- 1170.) We conclude the trial court’s ruling met this standard. It correctly denied the petition and entered judgment against the Smiths. “[W]e need not disturb the ruling when it is correct in law on other grounds.” ( Pogosyan v. Appellate Division of Superior Court (2018) 26 Cal.App.5th 1028, 1036 citing People v. Smithey (1999) 20 Cal.4th 936, 971

- 972.) The absence of a verbatim transcript or precise references
to i dentifiable demonstrative exhibits from 1958, such as the “plot map” mentioned by commissioners and council members, required D’Amour to reconstruct the basis of historic decisions and reconcile them with subsequent legal developments. The
trial court car efully reviewed D’Amour’s decision and the 1600

-8

page administrative record lodged with the petition. Its
statement of decision cite d all documents the Smiths use d to support their position, including the C ity A ttorney’s 1997 letter, court filings, and mos t significantly, the minutes and reports relating to Eaton’s lot split request in 1958. D’Amour and the
trial court did not reach a result contrar y to th e evidence, as the
Smiths argue, but a result contrary to the Smiths’ interpretation
of this evidence. We resolve such conflicts of disputed fact in favor
of Barthels as the prevailing party. ( Public Employment Relations Bd. v. Bellflower Unified School Dist. (2018) 29 Cal.App.5th 927, 939, citing Hayes v. Temecula Valley Unified
School Dist. (2018) 21 Ca l.App.5th 735, 746.)

C

. Judicial Estoppel Does Not Apply Under

These Circumstances
The Smiths contend the trial court erred by not addressing
whether the doctrine of judicial estoppel prevents Barthels f rom asserting his legal access to 1837 1⁄2 . The position s Barthels
asserted in his title insurance case , they allege , contradict those asserted in these writ proceedings . The contention i s moot considering tradition al writ review is not available

. If it were, any error was harmless because Barthels p ositions were neither

“ inconsistent ” nor taken “in judicial or quasi

- judicial administrative proceedings .” ( Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.)
Barthels sued his title insurer after the City refused to process his first development permit application in 1989

. The positions he took in that case predated the City’s conditional certificate of compliance by a decade and the stipulated judgment by two decades. His newfound optimism f low s from an altered legal landscape . We do not consider Barthels’ current positions
“inconsistent” with those taken under such different9

circumstances so long ago. Nor were those positions taken in the context of a judicial or quasi

- judicial administrat ive proceeding.
Barthels asked the City Engineer to determine whether the conditions of the 1999 certificate of compliance were satisfied

. The City Engineer answered in the affirmative. No administrative hearing occurred and none was required to make
this discretionary decision

. That Barthels must defend his access rights 30 years hence would only strengthen the younger Barthels ’ claims against his
title insurer. We doubt the trial court would consider his renewed attempts to establish access as behavior t hat c ould

“ ‘“‘ result in a miscarriage of justice ’ ” ’” and thereby warrant the extraordinary remedy of judicial estoppel. ( Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 46

- 48
, citing Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1468 [applying doctrine is discretionary even when all factors present].)
DISPOSITION The judgment is affirmed. Respondents shall recover their costs on appeal.
NOT TO BE PUBLISHED

.

PERREN , J.

We concur:

GILBERT , P. J.

YEGAN , J.10 Colleen K. Sterne, Judge Superior Court County of Santa Barbara

______________________________

Venskus & Associates, Sabrina Venskus and Rachael Kimball, for Petitioners and Appellants Greg Smith and Judith
Smith

. No appearance for Defendants and Respondents City of
Santa Barbara and Brian D’Amour.
Janet K. McGinnis for Real Parties in Interest and Respondents Herbert Barthels and Herbert E Barthels Trust

.